HKSAR v. Dey Chi-kong

DCCC 520/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 520 OF 2012

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Attempted Burglary". The burgled premises are a games centre.

Summary of Facts

2.About 3:00 am on 30 April 2012, PC 478 (PW1) was patrolling on Tang Lung Street, Causeway Bay.  He saw the defendant, who was wearing a hat, a face mask and a pair of gloves and carrying a bag, wandering around the Ground Level entrance of "Super Game Centre" situated at Basement, No.28 Tung Lung Street.  The defendant tried to lift the gate of the games centre, but ran to a nearby construction site to hide when a vehicle drove by.  When the vehicle was gone, he returned to the gate, squatted down and placed his hand on the lock of the gate.

3.PW1 intercepted the defendant for enquiries.  He admitted that he was in need of money and intended to enter the games centre to steal.  Under caution, the defendant admitted that he is a former employee of the games centre.  At the end of March 2012, his boss informed him that his employment would be terminated.  The defendant then duplicated the keys to the games centre without permission.  He intended to use the duplicate keys to enter the games centre to steal money.

4.The defendant took out 12 keys (collectively "E1") from his left trouser pocket, 2 of them could open the gate of the games centre.  Upon search, PW1 found a can of black spray paint in the defendant's bag; 1 screwdriver, 1 torch and 1 multipurpose knife in the left pocket of the defendant's jacket.  The defendant admitted that he intended to use the spray paint to black out the CCTV camera in the games centre.

5.The owner of the games centre confirmed that the defendant is a former employee; 9 keys in E1 could open the gate, various rooms, drawers and the alarm system of the games centre. Nothing was missing from the games centre.

Mitigation & Sentence

6.The defendant is now 53 and has 1 previous conviction, which is not related to burglary or theft.  Defence counsel Ms. CHOW informed me the defendant lost his marriage as a result of his previous offence.  His parents have passed away and his siblings are not in contact with him.

7.Ms. CHOW submitted that prior to his 1^st conviction, the defendant was a security guard.  After release from prison, he could no longer renew his licence.  He then took up odd jobs like cleaning but was injured, which prevented him from performing heavy manual work.  He began to work at games centres as a caretaker.  He has worked for the owner of the subject games centre for a number of years at 2 locations.  A few months before the present offence, the defendant discovered a colleague stealing and informed the owner.  The owner did not believe the defendant and terminated his employment.  In fact, prior to that incident, the defendant was promised by the owner a permanent position at the subject games centre.  Ms. CHOW explained that keys to the games centre were given to the defendant for work purposes.  He did not have permission to duplicate those keys.  The defendant's rent was due the day after the present offence, but he did not have the money to pay.

8.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.

9.The normal starting point for non-domestic burglary is 2.5 years' imprisonment.  I have borne in mind the comments made by the Court of Appeal in HKSAR v Po Yan Chuen [2002] 2 HKC 172 on sentencing of "Attempted Burglary".  I accept that in the present case, no one was alarmed by the defendant's activities and that he was stopped by PW1 before he began to break into the games centre; however, an element of breach of trust (in the Barrick sense) is clearly involved.  In other words, the mitigating aspect is offset by an aggravating feature.  Hence, I consider the appropriate starting point to be still 2.5 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 20 months. Apart from this, I see no other mitigating factors which warrant any further reduction.  The sentence I pass is 20 months' imprisonment.