HKSAR v. Wong Chi Hong

DCCC 186/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.186 OF 2013

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Reasons for Sentence

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1.The defendant pleaded guilty to 3 charges of burglary.

Summary of Facts

Charge 1 and 2

2.Charges 1 and 2 involved the same book shop “Book Life”, situation at Room KA, 3^rd floor, Amoycan Industrial Centre, Ngau Tau Kok Road. The book shop has only one entrance with a plastic main door secured by 3 padlocks.

3.At around 09:30am on 2^nd October 2012, the owner of the book shop, Mr. Wan, was informed by the security guard that his shop was burgled. Mr. Wan returned to his shop and found that the main door (valued at $3,000) was damaged and cash of $800 and two Octopus Cards (with value of $300 in total) were stolen from the cash register.

4.13 days later, at about 9pm on 15^th October, Mr. Wan left the book shop with the main door secured. At 11:05pm, he was informed that his shop had been burgled again. This time he found that the 3 padlocks used to secure the main door were prized open (repairing fees $100) and a cash box missing. The cash box was later recovered from the staircase of the building.

Charge 3

5.At about 11am on 11^th November 2012, the cashier of “Chuen Kee” restaurant returned to work and found that a cash box placed at the cashier counter was missing. another staff member found prizing marks on the switch of the roller shutter which guarded the main door of the restaurant.

6.Ms. Lam, the owner of the restaurant, confirmed that there was cash of $9,589 in the stolen cash box.

Closed circuit television footages

7.Closed circuit television cameras installed at Ammoycan Industrial Centre captured the defendant appearing at the 3^rd floor corridor at about 10:52pm on 15^th October. A security guard also remembered the defendant putting down his name and identity card number in a record book of the building at 11:10pm on 30^th September.

8.Closed circuit television installed at “Chuen Kee” restaurant captured the defendant tampering with the roller shutter switch box, entering the restaurant, taking away the cash box and left via the same route he went in.

Arrest

9.2 days after the ‘Chuen Kee’ burglary, at about 2:25pm on 13^th November, plainclothes Police officers saw the defendant acting furtively at the entrance of Amoycan Industrial Building. The officers recognized the defendant from the closed circuit television footage of the burglary of Chuen Kee 2 days ago and so they went up to intercept the defendant. The defendant immediately said that he knew it was wrong to steal and asked for a chance.

10.Under caution, the defendant admitted to the 2 burglaries of the book shop, and that he had stolen one Octopus card and $200 in the first burglary. He had exchanged the Octopus card for cash at Choi Hung MTR station and had spent the stolen money. He also admitted to stealing $34 worth of coins from the book shop in the second burglary and had spent the money as well. The defendant said he had to steal because his father did not give him any money.

11.The defendant had $4,343 cash on his person at the time of arrest.

12.At a subsequent video recorded interview, the defendant admitted to the burglary of ‘Chuen Kee’ restaurant using a key placed near the roller shutter to open the roller shutter and enter the restaurant. He stole the cash box from the cashier counter and left after closing the roller shutter. He had taken all the cash in the box, spent some of it playing video games. The defendant discarded the box at the 2^nd floor staircase of Lee Hong House and he led the Police officers there to recover the box.

13.The defendant admitted further that the cash found on his person at the time of arrest was part of the money stolen from the restaurant.

Previous convictions

14.The defendant has 4 convictions, 2 for burglary and 2 for theft. His last burglary conviction was on 26^th January 2011 when he was sentenced to 24 months’ probation at the District Court.

Mitigation

15.The defendant came to Hong Kong when he was 8 and he is diagnosed as mid-grade mentally retarded. He also suffers from epilepsy since 5 years old. He studied at a special school until he was 19 and began working as an air-conditioner apprentice earning about $200 per day, when he had work.

16.His parents divorced in 2005 and the defendant now lives with his mother and younger sister.

17.The defendant pleaded guilty, admitted to the Police immediately upon arrest, saving the court’s and Police’s time. The offences were committed on non-domestic premises all by himself. There are no aggravating factors. He committed the offence because of financial difficulties.

18.Given the disclosure in mitigation of the defendant’s mental condition, a probation officer’s report was ordered but the defendant refused to release any information to the interviewing probation officer and so no report was available in the end.

Sentence

19.The proper starting point for burglary of a non-domestic premises in the absence of any mitigating or aggravating circumstances is that of 2 and a half years’ imprisonment.

20.The defendant committed 3 burglaries within a 1 month and 10 day period. This must be considered an aggravating factor. The question is how much should that affect the ultimate sentence.

21.In the case of HKSAR v Fan Kit Hung [2009] 6 HKC 314, CACC 62/2009, the applicant over a four-month period burgled various shops at different locations, obtained a total of $130,825 in cash, as well as clothing and other items, none of which was recovered.  Most of the burglaries occurred at night when the victimised premises were empty. 

22.The Court of Appeal was referred to and considered a number of cases where there were multiple burglaries by professional burglars. In the circumstances, the Court considered that for the 13 burglary offences, an overall starting point of 6 years’ imprisonment would be appropriate.

23.In coming to their decision, the Court took into consideration the relatively low value of property stolen when compared to other more serious cases, that the victimised premises did not suffer great damage, and that the applicant had acted alone. The Court nevertheless found that the number of offences was “very high” and that they had no doubt the applicant was a professional burglar, despite having no previous convictions for burglary.

24.In our present case, the value of property stolen was only around $10,000, much lower than that of Fan Kit Hung. Although in relation to the book shop the entry was forced, there was no great damage done to any of the burgled premises. The defendant had acted alone. When compared to Fan Kit Hung, the number of offences would be on the low side of multiple burglaries.

25.On the other hand, the defendant had returned to burgle the same book shop twice. The doors to the burgled premises were all properly locked and the defendant had entered by either prizing open the padlocks on the door of the book shop or deliberately opening the roller shutter of the restaurant. The defendant was not an opportunistic burglar.

26.I find that adopting the approach of Fan Kit Hung, an initial overall starting point for the 3 burglaries would be that of 4 years’ imprisonment, which would result in a sentence of 32 months’ imprisonment upon a plea of guilty.

27.I am however aware of the defendant’s situation and find that his mental condition is a strong mitigating factor which would warrant a lower overall starting point. There is however no overlooking the fact that this is not his first offence and that what he did was serious. Having given careful consideration, I find that the overall sentence for all 3 charges should be that of 2 years and 2 months’ imprisonment.

28.I will therefore adopt the initial starting point of 30 months’ imprisonment for each of the 3 charges, reducing them by one-third in recognition of the defendant’s guilty plea and sentence the defendant first of all to 20 months’ imprisonment on each of the 3 charges, but order that 3 months of each of charge 2 and charge 3 be served consecutively to the sentence in charge 1. The defendant is sentenced to a total of 26 months’ imprisonment for the 3 charges.