HKSAR v. Cheung King San

DCCC1236/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1236 OF 2011

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Reasons for Sentence

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Background

1.The Defendant was convicted after trial of three charges of burglary, contrary to sections 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

2.The evidence at trial revealed that the Defendant entered a building under construction named “ONE WANCHAI” on Queen’s Road East, Wan Chai, in the early hours of 27 September, 1 and 5 October 2011 and stole from the Site some copper pipes. About 30 copper pipes were involved on the 1^st occasion. About 10 pipes were involved on each of the 2^nd and the 3^rd occasions. The estimated total value of the pipes was HK$12,000.

3.There were locks and gates at the entrances of the Site and a guard was posted near the gate at night. On each of those occasions, the Defendant admitted having crawled into the Site from underneath the gate. He also admitted that he had broken the pipes into smaller pieces before putting them in the canvas bag which he brought along.

Mitigation

4.The Defendant is aged 33 and is single. He has been before the court on 24 previous occasions with a total of 26 convictions. 2 of those were “burglary” offences for which he was sentenced in January 2002 and September 2008. 11 others were theft-related offences. He was last sentenced to a term of 4 months’ imprisonment in June 2011 for “theft” and was released in August 2011.

5.The Defendant was educated up to primary level. He was unemployed for a long period of time but, at the time of his arrest, he was working as a cleaner on a casual basis. It was said that the Defendant is suffering from depression and requires treatment once every three months.

6.In mitigation, Mr. Chiu submitted that the Defendant could perhaps be regarded as an opportunistic burglar as there was not much planning involved. However, Mr. Chiu accepted that the Defendant committed multiple burglaries in this case.

Sentencing Considerations

7.It is well established that, generally, for burglary of non-domestic premises, the tariff is one of 30 months (see, e.g. AG v Lui Kam Chi [1993] 1 HKC 215). It is also established that if a Defendant is an opportunistic burglar who entered into the premises when the premises were not locked, then a lower starting point could be considered.

8.In HKSAR v Fan Kit Hung, CACC 62/2009, 14 July 2009 (unreported), McMahon J, when dealing with the Applicant‘s appeal concerning the sentence passed for multiple offences of burglary of non-domestic premises, observed that,

“7. … From those cases and others we were referred to during argument it is apparent that there is an increasing appreciation of the need for deterrent sentences for offenders who are professional or serial burglars.

8. So far as sentence is concerned, much will depend on the aggravating circumstances of the individual case. However, where the facts reveal the offender to be a professional burglar then that is plainly an aggravating factor and, where several offences are also involved, the totality of sentence would, depending on other factors, often reflect a notional starting point of more than 5 years’ imprisonment.”

Sentencing in This Case

9.The Site had locks and gates. The Defendant made use of the gap between the canvas covering and the ground to gain entry into the Site.

10.While it is true that the Defendant did not use any tools and he might, in that sense, be regarded as more akin to an opportunistic burglar, it was also admitted that, on those occasions, he had a canvas bag with him into which he then put the stolen pipes. Therefore, the burglaries were not so opportunistic when one looks at the case from this angle.

11.In any event, I cannot ignore the fact that he repeatedly burgled the same Site three times within just about 10 days’ time. That is certainly an aggravating factor.

12.I also cannot ignore the fact that the Defendant was only released in August 2011 after being sentenced for theft. Yet, within less than 2 months’ time, he committed this series of burglaries. As regards the value of the copper pipes, it was not particularly large but it was still in the region of a few thousand dollars.

13.Having considered all the relevant facts, I am of the view that an overall starting point of 40 months is appropriate. As the Defendant was convicted after trial, he would not be entitled to the reduction associated with a guilty plea.

14.I have also carefully considered the matters put forth in mitigation, there is nothing which would warrant any reduction in sentence.

15.Applying the totality principle, I am going to order that all the terms in respect of the three charges are to be served wholly concurrently. Therefore, 40 months for each of charges (1), (2) and (3) to be served concurrently is a total term of 40 months.