HKSAR v. Chan Kong Fai

DCCC 574/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 574 OF 2013

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of attempted burglary, contrary to s 11(1)(a) and (4) of the Theft Ordinance, Cap 210 and s 159G of the Crimes Ordinance, Cap 200.

2.According to the Summary of Facts to which the defendant agrees, at about 3 am on 1 May 2013, he was seen using a crowbar trying to prize open the rear glass door of a sushi restaurant on the ground floor of Wong Tai Sun Plaza.  However, the glass door cracked and glass fragments scattered on the ground.  The defendant therefore fled but was arrested by police officers who were lying in ambush nearby.  Under caution, the defendant admitted that he committed the offence because he had no money. 

3.The defendant is now aged 46.  He and his girl friend have 3 children who are respectively aged 8, 7 and 4.  He has 9 previous between 1983 and 2011, including two robberies (1983 and 1993), one attempted theft and one theft (both 1985), one attempted burglary (2004) and one burglary (2011).  He was last released from prison for the burglary on 28 May 2012 which was about 11 months before he committed the present offence.  He is unemployed but worked previously as a causal construction site worker.   

4.In mitigation, Mr Lam for the defendant said that the defendant committed the present offence for financial reasons and family circumstances, namely that the defendant had spent a sizeable amount of money for his son to enter kindergarten and he had to find other money for the family’s living expenses.  A mitigation letter from the girl friend was tendered and she praised the defendant as a good father. 

5.However, there are clear case authorities that family circumstances and financial strait are no mitigation to serious offences like the present one.  In my view, the only powerful mitigating factor in the present case is the defendant’s timely plea, for which he will be given one-third discount. 

6.The defendant had used a crowbar in the offence.  He admitted under caution that prior to the commission of the offence, he had been looking around for premises to burgle.  Therefore, the defendant was not an opportunistic burglar.  He does have similar records but in my view he is yet to be regarded as a professional burglar for sentencing purpose. However, if the defendant commits burglaries again in the future, the court may view him differently. 

7.In the present case, I adopt 2½ years imprisonment as the starting point.  Giving one third discount for the plea, I sentence the defendant to 20 months imprisonment.