HKSAR v. Li Kam Hon

DCCC 1104/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1104 OF 2012

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Reasons for Sentence

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1.The defendant has pleaded guilty to a charge of attempt burglary. The premises concerned are a vegetable stall at the ground floor of No. 1037 Canton Road in Mongkok. At 7 pm on 30 September, the owner of the store secured the roller shutter of the stall and left. He confirmed to the police that there was in fact a defect in the roller shutter in that there was a gap of about 10 centimetres between it and the ground.

2.Shortly after midnight, officers were on patrol in the area and they heard noise coming from the direction of the shop and noticed the defendant acting furtively outside the shop and they put him under observation.  The defendant was seen to use an iron pipe to tamper with the roller shutter of the shop.  He tried to lift up the roller shutter with his hands but failed and subsequently left the shop and was arrested by the police. He remained silent under caution and a small torch was found in his possession.

3.An iron pipe measuring 40 centimetres in length and 5 centimetres in width was recovered outside the shop.  The owner of the confirmed that the iron pipe belonged to him and it had been placed near the shop for some time.  It seems that there was no loss suffered by the shop.

4.The defendant has an appalling record.  He has 18 previous court appearances for 24 offences, 14 of which involved offences of dishonesty.  None of the dishonesty offences involved offences of burglary.  However, he has been to prison on numerous occasions and was released only a short time before the commission of this offence.

5.The defendant is 37 years of age.  He was educated to Form 1 standard and worked previously as a delivery worker.  I am told that he has had an unfortunate life, having been abandoned by his parents when he was only 5 years of age.  I am told that a number of years ago he had to have an operation on his ankle and this has affected his ability to walk properly.  Because of his physical disability and his low educational standards, he has had difficulty obtaining employment.  He has worked as a casual worker earning some two to three thousand dollars per month.

6.At the time he committed this offence, he was just recently released from prison.  He was looking round the area near to the shop, seeking employment.  He had taken some alcohol on the evening in question but he was not drunk.  I am told that he walked past the store and noticed that there was a gap at the bottom of the roller shutter and that there was an iron bar nearby and he was tempted because of the situation.  His attempt to open the store was unsuccessful, however.

7.It is suggested that this offence was a spontaneous offence; it was not premeditated.  However, I did note that the defendant was in the vicinity of the store at 12.47 am and he was in possession of a torch. 

8.As counsel for the defendant has pointed out to the court, the usual starting point for offences involving non‑domestic burglary is a starting point of 2 and a half years’ imprisonment, and Mr Mui has very helpfully brought to my attention the case of HKSAR v Cheung To Ming [2006] 2 HKLRD 259.  This was a case involving non-domestic premises and, apparently, when the appellant in that case entered the premises, the door was ajar because previously others had entered the premises, and the court in that case decided to treat the appellant as a sneak thief rather than as a burglar.

9.In this case, however, the premises were secured although I accept there was a gap at the bottom of the roller shutter, and somebody had left this iron bar nearby which was obviously a great temptation to somebody with the defendant’s proclivities.  As against that, however, the defendant does have an appalling record for offences of dishonesty and only had recently been released from prison.

10.A letter has been handed to the court from the defendant in which he says he is remorseful for the offence.  He said that he has been in custody of four months since his arrest and has reflected on his situation.  It is difficult to treat that letter with any degree of as being sincere in the sense that he has been to prison on a number of previous occasions and has had ample opportunity to reflect on his dishonest way of life.  

11.However, looking at all the circumstances, what I have decided to do is take a starting point of 2 years for this offence and reduce that by one-third to reflect his guilty plea.  The defendant will therefore go to prison for 16 months.