HKSAR v. So Wai Ki

DCCC529/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 529 OF 2012

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Reasons for Sentence

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The charges

1.The defendant pleaded guilty to three charges of domestic burglary.  Such offence is contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210.

The facts

2.The facts of the case can be summarized as follows.

Charge 3

3.At about 1.55 pm on 3 May 2012, the police received a report that a suspected burglar was found on the 3rd floor, 18A Ka Shin Street, Tai Kok Tsui, Kowloon (“Flat 1”).  On arrival at Flat 1, the police saw the iron gate was left ajar and prised marks were found on the main door. Suddenly the main door was opened and the defendant came out.  He was holding two plastic bags, one with the stolen items as particularized in Charge 3, the other plastic bag contained one 40-cm long cutter, one 35-cm long spanner, one 25-cm long broken saw, one 27-cm long screwdriver and another 16-cm long screwdriver. 

4.Under caution, the defendant admitted the offence. 

Charges 1 and 2

5.At the material time, PW1 resided at Room B, 1st floor, 18A Ka Shin Street, Tai Kok Tsui, Kowloon (“Room B”).  When he left Room B for work, both on 15 February and 17 February 2012, he had securely locked the iron gate and the main door of the room.  Upon his return from work, he found that the iron gate was unlocked and the iron bars of the iron gate had been broken.

6.Room B had been ransacked and burgled on these two days when it was left unattended.  On each occasion one TV set was stolen and the total value of the stolen goods was HK$8,680. 

7.The defendant’s left thumbprints were found on the iron gate of Room B. 

8.Under caution, the defendant admitted that he had burgled Room B twice and had stolen a television set on each occasion. 

The defendant’s background and mitigation

9.The defendant, aged 34, was a drug addict.  He has 13 previous convictions, seven of which were dishonesty-related.  As young as at the age of 14, the defendant had his first conviction of theft.  Although he had been in and out of prison on terms ranging from 2 months to 20 months, he had not learned his lesson at all.  He was last convicted of theft and going equipped for stealing in March 2011 and was given a total sentence of 9 months’ imprisonment.  Very soon after his release from prison and within 3 months’ time, he committed the offences of burglary in Charges 1 and 2.

10.Apart from his guilty plea, this court sees no remorse from the defendant. 

Sentencing guidelines

11.The burgled premises in question were residential units in the same building.  The Court of Appeal in Chan Yui Man, CACC36/1988, laid down general guidelines of sentence for domestic premises burglary.  It was held that 3 years’ imprisonment was the proper starting point for a first offender of full age in domestic premises burglary. 

Starting point

12.Having fully considered the background of the case and that of the defendant, the mitigation put forward by the defence lawyer, the guidelines laid down by the Court of Appeal, this court will adopt a starting point for each charge to be 3 years’ imprisonment. 

13.The defendant is entitled to his one-third discount for his plea so as to reduce the sentences to 2 years’ imprisonment each. 

Consecutive or concurrent sentences?

14.The defendant has committed three distinct and separate offences of burglary with forcible entry into different premises in the same building at different times.  As a matter of sentencing principle, consecutive sentences are therefore called for. 

15.As far as Charges 1 and 2 are concerned, the defendant revisited Room B and burgled there twice just two days apart.  On each occasion, a television set was stolen and had caused the victim to suffer monetary loss of approximately $8,600.  In less than 3 months’ time, he burgled another residential unit in the same building.  As and when he was leaving the crime scene with the stolen items, he was apprehended by the police.  At that time he was fully and heavily equipped for the offence of burglary. 

16.Having fully considered the overall culpability of the defendant, the criminality of the offences and the totality principle, this court considers sentences to run partially consecutive and partially concurrent on each charge would be appropriate. 

Sentences

17.Charge 1, 24 months’ imprisonment.  Charge 2, 24 months’ imprisonment, 4 months of which are to run consecutively to Charge 1.  Charge 3, 24 months’ imprisonment, 4 months of which are to run consecutively to Charge 1.  The remainder are to run concurrently.  The total sentence is 32 months’ imprisonment.