HKSAR V Hai Chung Po

DCCC 174/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 174 of 2013

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance. You have admitted that on 1 November 2012 you entered as a trespasser part of a building known as Staff’s Living Quarters, Ground Floor, The Chinese Rhenish Church Kowloon at Tat Chee Avenue, Sham Shui Po, Kowloon, and stole one iPad and one iPhone.

2.On the day in question you had entered the Staff Living Quarters on the grounds of the church at about 1.50 pm.  At the time a lady called Miss Tsang was living in one of the flats there with her mother.  She left the flat and went to a washroom adjacent to the flat.  On leaving the flat she left the wooden door open as well as the iron gate of the flat open.  When she was out of the flat you went into the flat and stole the items.

3.You had entered the church grounds through an iron gate that was not locked but this gate was the gate of the staff entrance of the church.  After stealing those items, you then left the church grounds through the same gate.  Your entering the church grounds and the flat and leaving the church grounds was all captured on CCTV cameras installed in the church. 

4.Whilst you were loitering outside the flat another staff member of the church had seen you there in the corridor.  She asked you what you were doing.  You told her you were looking for a lady, however at that time she saw you walking towards the entrance of the church and paid no further attention to you.  It was after that that you went into the flat and burgled it.

5.You were arrested on 8 December, approximately a month later.  The staff member who saw you at the corridor of the flat that day positively identified you in an ID parade as the person she encountered outside the flat at the material time and day.

6.The stolen properties were not recovered.

7.Mr Wong, your solicitor, has made full and thorough lengthy mitigation on your behalf.  He has said all that he can say for you.

8.You are aged 35.  You have 20 previous convictions.  Nine of those convictions are for burglary and a further eight are for dishonesty, therefore out of your 20 convictions, 17 of those are for dishonesty offences. 

9.Mr Wong has mitigated that you are a gambling addict and to sustain your habit and your lifestyle which you have been involved in for more than 20 years you resorted to the crime of burglary.  Your earning as a casual decoration worker of about $13,000 a month was insufficient to support your gambling addiction.  You are a divorcee, however, you live with a lady in Shenzhen and hope to marry her and turn a new leaf. 

10.Mr Wong has asked me to consider reducing the usual starting point of 3 years’ imprisonment for domestic premises because nobody was in the flat when you burgled the premises.  I see no justification whatsoever that because nobody was in the premises a lower starting point should be taken, there is no known authority to me on that point. 

11.On the contrary, in this case I see that the normal starting point of 3 years’ imprisonment for a domestic burglary should be enhanced because of your appalling criminal record in respect of dishonesty offences, which are 17 offences, and of your similar offences of burglary, of which there are nine previous convictions.  Those previous sentences have had no deterrence on you and the public requires protection from you.

12.In those circumstances, defendant, I consider that your previous convictions are an aggravating factor such that the normal starting point should be enhanced.

13.Defendant, the usual starting point is 3 years’ imprisonment.  That term shall be enhanced by 3 months.  You have pleaded guilty.  I give you full credit for your plea of guilty, and that term shall be reduced by one-third.  Your term of imprisonment is one of 26 months’ imprisonment, to which you are so sentenced.

Court adjourns - 11.12 am

26 March 2013

27 March 2013

Court resumes - 3.10 pm

Defendant present. Appearances as before.

14.Defendant, the matter was brought up to me again because when I sentenced you yesterday, I was not informed about your sentence you are now serving.

15.Miss Chan, the prosecutor, has now informed me that you have been sentenced to imprisonment on default of payment of fines which you received on three summonses:  two in Eastern Magistracy and one in Kwun Tong Magistracy.

16.As at 21 March this year - that is, a week ago today - you are serving in those three summonses a total of 2 months and 7 days’ imprisonment.

17.That sentence should be broken down as follows.

18.In ESS 34663/2012, because you defaulted payment of $20,000, you were sentenced to 2 months’ imprisonment on 20 March.

19.In ESS 34664/2012, you were fined $500 and again because you defaulted in paying your fine, you were sentenced to 3 days’ imprisonment.

20.Those two summonses arose out of the same incident and the magistrate then ordered you to serve 2 months and 3 days of that sentence, to run concurrently and, therefore, the total was 2 months’ imprisonment.

21.Then, in Kwun Tong Magistracy, KTS 24153/2010, you defaulted in paying a fine outstanding of $1,500 and you were sentenced to 7 days’ imprisonment on 21 March 2013.

22.So for those three summonses, you were sentenced to a total of 2 months 7 days’ imprisonment.

23.The only issue before me today is whether the sentence I ordered of 26 months is to be served consecutively; or concurrently; or partly consecutive, partly concurrent to that 2 months 7 days’ imprisonment.

24.Mr Wong has urged me to have those sentences run concurrent to this term, as having regard to the nature of those offences, they were imposed as a result of non-payment of fine.

25.However, he says if I am not with him on that, that the sentence should be partly concurrent, partly consecutive.

26.In considering whether sentences should be served consecutively or concurrent, one does look at the nature of the offence and also the principle of totality.

27.The nature of those offences are wholly different from the offence to which you committed before me, which was a burglary. They were wholly separate and distinct offences.

28.In those circumstances, I consider that this sentence of burglary should run wholly consecutive to that term of 2 months 7 days to which you are presently serving in those three summonses.

Please refer to CACC115/2013 for the relevant appeal(s) to the Court of Appeal.