HKSAR v. Chui Kwok Luen

DCCC149/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 149 OF 2012

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Reasons for Sentence

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1.The defendant enters a plea of guilty to two charges of burglary, brought against him under section 11(1)(b) and (4) of the Theft Ordinance, Cap.210.

Facts

2.The facts to which the defendant agrees are as follows. 

Charge 1

3.On the morning of 31 March 2011, an employee of Thai BBQ Kitchen at Shop D, Ground Floor, No. 80 Electric Road, North Point, noticed some prise marks on the shutter at the rear entrance to the restaurant. 

4.The employee entered the restaurant to find it ransacked, and that $2,500 cash had gone missing. 

5.Upon his arrest, the defendant admitted having burgled the restaurant, but said he had only taken several hundred dollars from it.

Charge 2

6.In the small hours of 5 November 2011, a police officer saw the defendant acting suspiciously at Greeson Street near Queen’s Road East.  The officer kept him under observation. 

7.The defendant walked near the park at Luen Fat Street and picked up two wooden bars, and at the rear lane of the same street, he took a crowbar with which to prise open the rear door of Kung Chiu Noodles on the ground floor, Fu Tung Building, No. 104 Queen’s Road East, Wanchai.

8.The defendant entered the restaurant and emerged some 10 minutes later, carrying two recycled bags in his shoulders.  As soon as he came out of the restaurant, he discarded the crowbar. 

9.He then boarded a taxi.  The officer rushed forward and intercepted the taxi.  Inside the recycled bags the defendant carried were found $37,750, RMB¥325, two torches, a Prada bag, six invoices issued to the restaurant, and 34 bags of coins worth a total of $6,904.40.

10.The defendant was arrested.  Under caution, he admitted to the offence and said he needed money to treat his leg’s condition.

Conviction

11.The court finds the defendant guilty as charged. 

12.The defendant has had 11 criminal records prior to his current conviction, seven of which were for offences of burglary or attempted burglary. 

Mitigation

13.In mitigation, the defence puts forward the following matters for the court’s consideration. 

14.The defendant is 48 years old.  Single, he resides with his aged parents. 

15.After his release from prison in June 2010, he has worked as a part‑time kitchenhand and has at the same time been receiving disability allowance.  His total income was about $5,000 a month. 

16.To his parents, he contributed about $1,000 to $2,000 a month towards his own expenses.

17.The defendant suffers from hyperglycaemia, and heart and lung disease.  His left big toe was found to be gangrenous and was amputated in December last year.  Several months later, he was advised to have further amputation in the foot. 

18.The defendant chose instead to have expensive Chinese medical treatment, which has put him under some financial pressure, and thus the commission of the offences. 

19.Counsel for the defence submits that the defendant co‑operated with the police and confessed to the crimes at the first available opportunity.  He volunteered information about the offence in Charge 1.  Further, the offences did not involve planning and organisation.  The defendant has acted alone, no heavy machinery has been used in the commission of the offences. 

20.The court is asked to be as lenient as possible in sentencing the defendant. 

Discussion

21.Hong Kong gives high priority, as it is in the public interest to do so, to the protection of commercial premises from unauthorised invasion.  Burglary committed at those premises causes disruption of business and inconvenience to the victimised operators. 

22.Prevalence of this offence would give Hong Kong, an international city of commerce, a bad name.  Unfortunately, burglary has become all too common; a deterrent sentence is called for.

23.The Court of Appeal has provided a sentence guideline of two years and six months’ imprisonment for burglary committed in non-residential premises (see R v Wong Man CACC372/1992). 

24.There is no reason in this case not to adopt the sentence guideline.  In all the circumstances of the case, a global starting point of two years and nine months would be adequate to reflect the gravity of the offences.  In adopting this starting point, the court has taken into account the fact that the defendant has had numerous convictions for the same or similar offences, and has carefully considered all matters in mitigation the defence has put forward. 

25.The defendant is a repeat offender.  Apart from his guilty pleas, nothing in the defendant’s personal and family background would justify any further reduction in sentence.

26.Every population has its share of unfortunate members; save in truly exceptional circumstances, the fact that the defendant is disease-ridden is never a strong mitigation.  The facts of the case show that the defendant must be well capable of gainful employment.

Conclusion

27.In the result, the court would adopt a starting point of two years and six months’ for each of the two charges, which is reduced by one-third on account of the defendant’s guilty pleas to one of 20 months’ imprisonment.

28.Having considered the principle of totality, the court orders that two months of the sentence in Charge 2 should run consecutively to the 20 months’ sentence in Charge 1, resulting in a final sentence of 22 months’ imprisonment.

Order

29.For the two offences of which he stands convicted, the defendant is sentenced to a term of imprisonment of 22 months.