HKSAR v. Wu Ka Ho

DCCC 979/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 979 OF 2013

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to two offences of burglary, each contrary to sections 11(1)(b) and (4) of the Theft Ordinance, Cap 210. You admitted the facts, and I convicted you. A further offence, which appears as Charge 1, of attempted theft was ordered to be left on the file and not to be proceeded with without the leave of this court or the Court of Appeal.

2.The facts of the two burglaries are briefly as follows.  They both involved the same premises.  That is, a hair salon at 107 Sha Tin Tau Village, Fung Shek Street, Sha Tin.  The first burglary occurred on 2 August of 2013.  PW1, the owner, gave the key to a friend to repair the water heater, and left at about 7 pm.  At about 10.30 pm, the friend left the premises secure.  PW1 returned to the premises at about 9.10 am on 3 August of this year to find that the aluminium door had been broken, the locked drawer prised open, $300 in cash had gone, and a screwdriver from a toolbox was found on a chair.  The damage was repaired.

3.Then, at around 7 pm on 4 August, PW1 left the premises secure.  The next day at about 9.15 am he returned to find the door prised open again, $120 missing, and a pair of pliers worth $50 and a screwdriver worth $20 also missing.  He reported the matter to the police.

4.At around 12.50 pm on 9 August, PC6312, who was PW2, intercepted you at Sun Tin Wai Estate.  He made inquiries of you, and under caution you admitted the burglary.  You said that you were unemployed and in need of money.  You were arrested and cautioned, and you admitted both offences.  You admitted that you had entered by kicking the door and stealing cash.  You took police officers to where you had concealed the pliers and screwdriver.  In a later video-recorded interview under caution you repeated your admissions. 

5.You accept that you have nine previous convictions, six of which involve dishonesty, but none are for burglary. Mr Poon entered mitigation on your behalf, and I am obliged for the written submissions that he made prior to the plea.  Such an approach makes the court’s sentencing exercise so much easier.  I would also compliment Mr Poon for his very comprehensive submission.

6.In mitigation, what he told me is this:  that you admitted the burglaries on 3 and 5 August last; that on the first occasion you stole $190 and Renminbi $1,100; on the second occasion you stole $120, a pair of pliers and a screwdriver.  On 9 August of this year when intercepted by the police, you made full confessions.  I understand that you live nearby. You live with your family.  Your mother supports the family because your father is sick.

7.Mr Poon said that the normal starting point for non‑domestic burglaries, and he is quite correct in this, is 30 months’ imprisonment, which can be lowered for opportunistic burglaries, which he submitted this was.  The basis upon which he made that submission was that you took no tools with you, there was no planning involved, and there was no joint offender.  Also, it was the same premises on two occasions.

8.In the written submission he took me through various authorities to assist me, but I will not dwell upon those.  You admit, as I say, nine previous convictions, six of which involve dishonesty but none are for burglary.  Mr Poon, on your behalf, submitted that the correct final sentence would be one of approximately 25 or 26 months’ imprisonment.  He also produced and referred to three letters that had been written on your behalf, one from your mother and one from a Miss Choy of the Christian Concern Association.  The other one, I understand, is from the Hong Kong Sheng Kung Hui Sha Tin Children and Youth Integrated Service Centre.  Those letters are on file, have been referred to on the record, and I do not intend to repeat then.

9.Mr Poon also said that you are extremely remorseful, that you are a simple-minded young man, and by implication, that you were not able to appreciate the quality of your acts.

10.I turn now to the sentence.  You are a young man with a poor criminal record.  This is your tenth conviction.  However, I do note that you have no previous convictions for burglary, although there are six relating to dishonesty.  It is a matter of aggravation, in my opinion, that you burgled the same premises on two separate occasions, that damage was done, and that the cash has not been recovered. 

11.However, in your favour, you did act alone, and perhaps the most telling mitigation feature is that upon interception, you were extremely co‑operative with the police and made full and frank confessions from the outset.

12.As to length of sentence, as I have indicated, I am in broad agreement with Mr Poon, though perhaps my approach is somewhat different in the computation of that sentence.  In respect of each of these burglaries, I can see no reason to depart from the normal starting point of 30 months, that being the usual starting point for non-domestic premises.

13.Whilst I do accept that there was no great planning involved in this, nor did you go equipped, there was damage done, your entry was by force, and you targeted the same premises on two occasions. Certainly I would agree with Ms Chan that in respect of the second occasion, that certainly takes it out of the category of opportunist burglary.

14.I do accept that the principle of totality should and has to be applied in this case.  In respect of the 1st charge, I take as a starting point 30 months’ imprisonment, reduced to 20 months for your plea of guilty.  In respect of the 3rd charge, the same sentence:  30 months, reduced to 20 months for your plea of guilty. 

15.The second sentence will be served in the following way:  14 months will be served concurrently, and 6 months consecutively.

16.That is a total of 26 months’ imprisonment.