HKSAR v. Cheung Kam Kwong

DCCC 1158/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1158 OF 2012

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of burglary. Particulars of the charge are that the defendant on 6^th and 7^th October 2012, having entered as a trespasser part of a building known as Modern Beauty Salon, stole therein 2 electrical drills and one electrical gun.

Summary of Facts

2.Modern Beauty Salon was under renovation at the material time. Workers left the premises on 6^th October after securing all windows and doors. Upon return the following day, the rear door was found prized open. 2 electrical drills and an electrical gun worth around $5,000 in total were found missing.

3.Closed circuit television footages captured a man appearing at the carpark, the lift and 1^st floor staircase of the complex of the burgled premises.

4.On 18^th October 2012, Police officers spotted the defendant in Mongkok acting suspiciously. Upon arrest, the defendant confessed under caution for burgling the premises. The stolen properties had been sold for around $1,000.

Previous convictions

5.The defendant has 33 records, of which 24 are related to theft and one for robbery.

Mitigation

6.The defendant is 37, educated up to Form 2 level in Hong Kong. He was unemployed and last discharged from prison on 18^th May 2012 after serving time for his conviction for theft and attempted theft. He has been addicted to dangerous drugs for 16 years. The defendant is the only son and his parents both passed away.

7.The defendant was living with his friends, paying $1,300 rental per month for a partitioned room. He is divorced with no children. The defendant was relying on Social Welfare assistance of about $3,100 per month since August 2012. The defendant committed the offence because of financial difficulties. He was not able to find work after his release from prison in May. The defendant about $50 per day on his drug habit. The defendant was left with very little money for food.

8.It was submitted that this is the least serious type of burglary. No tools, no violence were involved and property stolen was worth about $5,000 dollars. The defendant had taken drugs after visiting his friends in Yau Ma Tei and was on his way home when he walked past Mongkok. At first, he entered the premises with no intention to steal, but when he passed the victim’s shop and saw things unattended, perhaps under the influence of the drugs and out of greed, he entered to steal. The defendant is shameful and realized what he had done was wrong.

Sentence

9.The proper starting point in a case of burglary of non-domestic premises in the absence of aggravating or mitigating factors is 2 years and 6 months’ imprisonment: R v Wong Man [1993] 1 HKC 80 and Secretary for Justice v Tsang Hon-yin AR 5/2004.

10.Having heard from the defendant’s legal representative I find that there are no mitigating factors that would cause me to consider lowering this initial starting point. In particular, I do not accept the submission that it was an opportunistic burglary. The rear door of the burgled premises was “prized open”. Since the workers had secured all the doors, the door must have been intact when they left. Given that the defendant had admitted that he had burgled the premises when he admitted to the summary of facts, the only inference must be that it was the defendant who prized it open. It was therefore not an opportunistic crime.

11.I find the defendant’s previous conviction record an aggravating factor that must be taken into consideration when sentencing the defendant.

12.It is trite law that a poor previous record for similar offences will justify a court to impose a higher sentence: see Chapter 14, “Criminal Record”, Sentencing in Hong Kong, Cross & Cheung, 6^th Edition.

13.While I accept that this is the first burglary offence that the defendant had been convicted of, in the previous 33 convictions which spanned some 18 years starting from 1994, 24 were for theft or attempted theft, and 22 of those were for theft or attempted theft from vehicles. The defendant showed clear disregard for other people’s properties.

14.Furthermore, the defendant was last convicted in January 2012 and released from prison on 18^th May 2012. He committed the present offence just 5 months later. The previous term of imprisonment clearly did not deter the defendant from going back to crime.

15.Based on the above referred aggravating factors, I will add 3 months to the initial starting point of 30 months’ imprisonment. The defendant is given the full one-third discount for his guilty plea and sentenced to 22 months’ imprisonment.