HKSAR v. Chan Wan Kin
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DCCC 743/2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 743 OF 2013 ----------------------
--------------------- Reasons for Sentence --------------------- 1.The defendant pleaded guilty to three counts of burglary and one count of attempted burglary. 2.The facts are that for the 1st charge, on 2 March 2013, the defendant climbed out of Winning Heights onto a scaffold to the 2nd floor. At Room 2H, the defendant prised open a window and entered into this domestic premises. The defendant stole items, including jewellery and cash, to a value of about $45,900. 3.The 2nd charge was committed on 28 April, and again, the defendant climbed out of Winning Heights, took advantage of the scaffold that had been erected, and prised open the windows of 23H on the 23rd floor. From within the premises the defendant stole again cash, jewellery and a watch. There the value of the stolen items was estimated at approximately $206,000. 4.The 3rd and 4th charges were committed on 7 May. The 3rd charge is an attempted burglary, and the defendant again climbed out of the building of Winning Heights, took advantage of the scaffold, and climbed to the 14th floor, Unit 14F. When he could not open those windows, he moved to Unit 14E. After he prised open the windows of 14E, he entered and stole cash and jewellery. The items were valued at about HK$50,000. 5.The defendant then left the Unit 14E and was caught by police at the lift lobby of Winning Heights as he tried to leave the building. The police then searched the defendant and the backpack he had in a paper bag, and found all the items that he had stolen from the last premises, 14E. He was caught red‑handed. 6.In addition, the police found gloves, a torch, a surgical mask, a cap and three screwdrivers; all tools of a burglar. 7.I note that during the course of the burglaries of the three premises there were no victims home at the time. All victims gave evidence and told the police that they had locked up the premises before they left home. It is relevant that the defendant accessed all the properties by prising open windows. It is also relevant that the property that was lost to these victims is substantial, in particular Charge 2. 8.After the defendant was arrested, he was cautioned, and under caution, made full admissions to the police of not only Charges 3 and 4, but also 1 and 2. 9.The defendant is not a man of clear record. On four previous occasions where he has appeared in court he has been convicted of 31 offences, of which 21 were burglary offences and one was an attempted burglary offence. 10.I note that the four previous occasions were in 1996, 1998, 2004 and 2010. 11.The defendant was released from his last term of imprisonment in September 2011. 12.I have heard in mitigation that the defendant is 36 years old, married, with a 10-year-old son. His family live in mainland China. The defendant was living in Hong Kong, and explained when he lived in China and why he came back to Hong Kong in a mitigation letter to the court. When he came back to Hong Kong he survived on casual work and public assistance. He had an accident in September 2012, and injured his foot. He was in receipt of some disability allowance as a result. I doubt that is applicable now. If he can climb up and down a scaffold, I cannot see that he has any disability. 13.The defendant found, after a period of time, that his financial situation was dire for himself and his family. He therefore resorted to his old ways again and committed these offences. 14.I have received a mitigation letter from the defendant where he expresses remorse, explains why he committed these offences, and promises that he will reform himself. He will stay away from a life of crime for the sake of his son and wife. 15.Defence counsel has said all he can on behalf of the defendant in mitigation. He has also submitted an authority for me to consider - that is HKSAR v Hui Chi Tong CACC 414/2007 - drawing my attention particularly to paragraph 25, where the Court of Appeal feels a small discount is appropriate where an offender confesses to a crime and the only evidence against an accused of that crime is that confession. The rationale behind that is that it is in the public’s interest to encourage an offender to own up. 16.There are guidelines for burglaries of domestic premises, and that is a usual starting point of 3 years where there are no mitigating or aggravating factors. The same starting point will apply here in relation to Charge 3, the attempted burglary. 17.The defendant’s frank confession of Charges 1 and 2 will merit a small discount. His bad criminal record could be considered an aggravating factor, and it is on the cusp of being a reason to increase any starting point. However, I have considered the record and the dates of the convictions, and on this occasion will not increase the starting point, but if the defendant commits any further burglaries in the future, the court may consider him a persistent offender and increase the starting points of those offences. The defendant should consider himself warned today. 18.I have taken into account the facts of the four charges, the number of charges, and the dates they were committed on, the loss suffered by the victims, in particular the victims of the second premises, the defendant’s mitigation, record and background, and lastly, the frank admissions made by the defendant upon his arrest. 19.I will take for each offence a starting point of 3 years’ imprisonment. Because the defendant has pleaded guilty today, he is entitled to a discount of one-third off those starting points. 20.The defendant will be sentenced to 2 years’ imprisonment for each offence. I take into account the totality principle, the fact that Charges 1 and 2 were committed some six or seven weeks apart, and the losses of the victims being significant. 21.Accordingly, for Charge 1, the defendant is sentenced to 2 years, as he is for Charges 2, 3 and 4. For Charge 1, I will order that 6 months of that 2-year sentence be served consecutively to Charge 3. For Charge 2, I will order that 8 months of the 2-year sentence be served consecutively to Charge 3. For Charges 3 and 4, both sentences will be served concurrently. 22.Therefore, the defendant is sentenced to a total of 3 years and 2 months. I will consider a further discount of 4 months from that total sentence for owning up to Charges 1 and 2 when arrested. 23.Therefore, the total sentence for all four charges is 2 years and 10 months.
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