HKSAR v. Chan Ka Man

DCCC 788/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 788 OF 2012

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Burglary". The burgled premises are a hair salon.

Summary of Facts

2.Mr. CHANG (PW1) is the proprietor of a hair salon situated at Ground Floor, No.24 Hoi Ning Street, Sai Wan Ho.

3.About 8:00 pm on 18 July 2012, PW1 went off duty.  Before he left his shop, he closed the glass door but forgot to lock it.  He also pulled down the metal roller gate and locked it.  Due to the age of the roller gate, it could be lifted up by force.

4.About 8:50 pm, Mr. YIP (PW2) walked past PW1's shop whilst on his way to dispose garbage. He saw the defendant squatting outside the shop.  The defendant lifted up the roller gate until it was half open.  After disposing the garbage, PW2 did not see the defendant on his way back.  The roller gate of PW1's shop was still half open.  Being acquainted with PW1 and his staff, PW2 knew that the defendant was not working at PW1's shop.  Feeling suspicious, PW2 reported the matter to the Police.  At that time, the defendant came out from PW1's shop and left.

5.PW2 followed the defendant.  He saw the defendant throwing something towards the flowerbed at the Hoi Ning Street Sitting Area and towards the roadside of Tai On Building.  Finally, the defendant stopped and waited at a public light bus stop.  PW2 saw 2 police officers (PWs 3 and 4) and pointed out the defendant to them being the intruder breaking into PW1's shop.

6.PWs 3 and 4 intercepted the defendant.  Upon search, they found on him a brown bag (Exhibit P2) containing a black torch (Exhibit P1); a black shoulder bag containing 16 $5 coins (Exhibit P4) and a Wing Lung Bank plastic bag (Exhibit P5).  The Police also found a brown wallet (Exhibit P6) in the flowerbed at Hoi Ning Street Sitting Area and an envelope (Exhibit P7) on the road outside Tai On Building.

7.Under caution, the defendant admitted that he is a drug addict but had no money to buy drugs.  He therefore committed the present offence.  He lifted up the roller gate of PW1's shop and found the glass door unlocked.  Inside the shop, he stole $80 (Exhibits P4 and P5) and $280 (Exhibit P8) from the drawer at the cashier counter.  He also stole a bag (Exhibit P2), a wallet (Exhibit P6) and an envelope (Exhibit P7) from another drawer.  He soon discovered that Exhibits P6 and P7 were useless so he threw them away.  He claimed that the black torch (Exhibit P1) belongs to him.  Based on the defendant's admission, the Police seized Exhibit P8 from him.

8.All exhibits were shown to PW1.  He confirmed that Exhibits P2 and P4 to P8 are his properties.

Mitigation & Sentence

9.The defendant is now 44, divorced and lives alone. He has 15 conviction records involving 21 offences, 13 of which are related to Burglary. His last conviction is dated November 2008; he was sentenced to 20 months' imprisonment for Burglary.

10.Defence lawyer Mr. CHENG submitted that the defendant is a deep-rooted drug addict whose addiction began in 1989 at the age of 21. After his release from prison in 2009, he found a job as a driver in a welfare organization. With the support of his girlfriend, the defendant has worked hard to turn a new leaf in his life. In addition to driving, he was required to work long hours and to perform a wide range of duties including car maintenance, water and electricity repairs and looking after elderly people. The defendant felt much pressure from work and from his own personal background, constantly trying to prove himself reformed. He and his girlfriend also plan to get married in 2013. Owing to stress, the defendant relapsed into his drug habit. With the encouragement and support from his girlfriend, the defendant planned to resign from his job and then join a voluntary drug treatment programme. However, he had to give notice of his resignation to his employer. Unfortunately, he committed the present offence before his resignation.

11.Mr. CHENG also submitted that the hair salon owner suffered no loss; all stolen items were recovered.

12.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. Wanting money to feed one's drug habit is most certainly not a mitigating factor or an excuse to commit a crime either.

13.I have read the letter written by the defendant's girlfriend. It is encouraging to see that the defendant has been trying hard to lead a law-abiding life. But at the same time, he must take full responsibility of his own life and bear the consequences of his wrongdoing. This is his 14^th Burglary offence. He has no one but himself to blame.

14.Mr. CHENG has tried his best to mitigate for the defendant and to persuade me not to increase the starting point, notwithstanding this is the defendant's 14^th similar offence. Regrettably, I do not see the force in Mr. CHENG's submission. The defendant is plainly a repeated offender. I must increase the starting point to add an element of deterrence. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. In this case, I will adopt a starting point of 3 years' imprisonment. A one-third discount is given for the guilty plea, reducing the sentence to 2 years. Apart from this, I see no other mitigating factors which warrant any further reduction. Hence, the sentence I impose is 2 years' imprisonment.