HKSAR v. Hau Pak Kwan

DCCC 111/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 111 OF 2013

-----------------

--------------------------------------

REASONS FOR SENTENCE

--------------------------------------

Overview

1.The defendant was convicted after trial for one count of Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

The facts

2.The facts, as I found in the Reasons for Verdict, were that on 7 December 2012 the defendant entered into Craigengower Cricket Club ("CCC"), a private club reserved for members only.  He then found his way to the rear door of the male changing room on G/F.  While he was holding a damaged card sensor which was used to secure the rear door of the changing room, a club attendant came out and asked him to leave.  When the attendant went to make a report to the assistant club manager, the defendant went into the male changing room via the rear door.  Eventually the defendant was found inside a cubicle of the male toilet of the changing room.  When the assistant club manager was guarding the cubicle, the defendant came out with a blue bag.  Upon seeing the staff of the club, he immediately returned to the cubicle.  Later he came out again and the blue bag was found hanging behind the door of the cubicle.  A report was then made to the police.

3.Upon arrival, the police officers located the blue bag owner Mr Chan.  It was confirmed that Mr Chan put his bag on top of a locker at about 7 pm in that evening.  After that, he went to play tennis and returned to the male changing room at about 11 pm.  The bag contained a towel, a jacket, a T-shirt, a pair of shorts, a belt, a pair of socks, a headband, an umbrella, a scarf and a letter in the name of his wife Madam Chan Wai Fong.  Mr Chan estimated the value of all of his belongings was about HK$400.

4.Upon search of the defendant, a face mask, three gloves and eight screwdrivers were found inside his own backpack.

5.At the material time, the defendant was not a member of CCC nor a guest of any members.

Mitigation

6.The defendant is now 29 years of age, single.  He was educated up to Form 7 in Hong Kong.  He previously worked a personal trainer in California Fitness Club.

7.He has 23 criminal records, 12 of which are related to dishonesty.  He was convicted of “Assault with intent to rob” and “Burglary” in 2003 and 2007 respectively and was put on probation on both occasions.  From 2008 to 2011, he was sentenced to DATC for each conviction. He was discharged from DATC on 26October 2012.

Sentence

8.In mitigation, it was submitted that the defendant was a mere opportunist and this was not case involving forcible entry in small hours of the day.  The defence prayed in aid of the Court of Appeal decision in HKSAR v. Cheung To Ming CACC 406/ 2005.  In that case, the appellant was an illegal immigrant who entered into a centre to look for food. In allowing the appeal against sentence, the Court of Appeal regarded the appellant was a “sneak thief” and held that the appropriate starting point was one of 18 months’ imprisonment.

9.Whilst I accept that the conventional starting point of 2 years and 6 months’ imprisonment for non-domestic burglary cases is not a strait-jacket, I however do not accept that the defendant in this case came close to the position of a “sneak thief”.  Plainly the case as cited can be distinguished in that the burglaries there involved the theft of food for personal consumption.

10.In the present case, the defendant went into a private club to which he was not allowed to have access.  CCC, just like many other private clubs in Hong Kong, does not have a stringent security check at the members' entrance.  Understandably, it is because most private clubs would like to minimize the inconvenience and disturbance that might cause to members and their guests upon entry.  The defendant however envisaged this kind of practice and make use of the loophole in the security system to commit the offence.  Also he was found with tools such as mask, gloves and screwdrivers. In my judgment, the defendant was not an opportunist and the commission of the offence was premeditated which involved a degree of planning.  A deterrent sentence is therefore called for.

11.Whilst there was no actual loss caused, it is in my view only fortuitous that Mr Chan did not carry with him any valuable items and the crime was being detected by the watchfulness of the club staff.

12.Having considered all the circumstances and his previous records, I adopt a starting point of 2 years and 6 months' imprisonment.

13.Having considered everything urged upon me by the defence, I see no mitigating factors that warrant any discount in sentence.

14.Accordingly the defendant is sentenced to 2 years and 6 months' imprisonment.