HKSAR v. Ma Wai Kwong

DCCC 32/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 32 OF 2014

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REASONS FOR SENTENCE

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The defendant faces 4 charges of "Burglary" (Charges 1 to 4) and 1 charge of "Attempted Burglary" (Charge 5). He pleaded guilty to Charges 1, 4 and 5. The prosecution applied to leave Charges 2 and 3 in the court file; not to be proceeded against him without leave of court. I granted the application. The burgled premises are all non-domestic.

Summary of Facts

Charge 1

2.Mr. P.W. WONG is the owner of "Salon Think" situated at 1^st Floor, No.146 Sai Yeung Choi Street South, Mongkok.  He left his shop about 10:30 pm on 10 June 2013 after securing the glass door and roller shutter.  About noon the next day, Mr. WONG returned to his shop and found the roller shutter open. $6,000 cash in the drawer were stolen.

Charge 4

3.Mr. S.C. WONG is the owner of "Comfort Salon" situated at Ground Floor, No.38 Tai Nan Street, Mongkok.  About midnight on 13 October 2013, an employee of the salon left the shop last.  About 9:00 am the same day, Mr. WONG returned to the shop and found the window of the male toilet broken.  $5,300 cash in the drawer were stolen.

Charge 5

4.Mr. LEE is a volunteer working for a trade association ("the Association") situated at Front Portion, 1^st Floor, No.678 Shanghai Street, Mongkok ("the Building").  About noon on 7 November 2013, he secured the metal gate and wooden door of the Association before he left.

5.About 2:15 am on 8 November, SPC 54868 saw the defendant entering the Building in a suspicious manner.  He and other police officers searched the Building.  They heard some drilling sound near the smoke door on the 1^st Floor.  SPC 54868 opened the smoke door and found the defendant, who was wearing a pair of white gloves and holding a black torch in his left hand, and a screwdriver in his right hand, at the entrance of the Association.  The defendant was also pulling the metal gate of the Association.  Upon seeing SPC 54868, the defendant tried to escape but failed.

6.SPC 54868 found a small hole on the key lock of the metal gate with some residuals on the floor.  An electric drill, a recycle bag and a drill box were also found at the scene.  A forensic scientist later confirmed that the hole was produced by the electric drill and the residuals on the floor came from the key lock.

7.Mr. LEE confirmed that the Association suffered no loss, except the cost of repairing the lock was $389.

8.The defendant was arrested at the scene.  Under caution, he admitted that he was caught red-handed and that he intended to go into the Association to steal some money.

9.In his video-recorded interviews, the defendant admitted having committed the burglary offences in Charges 1, 4 and 5.  He also described how he committed each burglary.

Mitigation & Sentence

10.The defendant is almost 53. He is married with a son; his wife and son reside in the mainland. The defendant has 8 criminal records including 6 burglary offences, 4 theft offences and 3 robbery-related offences. His last conviction is dated March 2010; he was sentenced to 22 months for "Burglary". He was released in May 2011.

11.Defence counsel Mr. FU informed me that the defendant is a decoration worker who could earn $800 per day. In a good month, he could earn about $10,000. Unfortunately, he has been unemployed most of the time. The defendant resides in Hong Kong alone. His parents passed away many years ago and he seldom contacts his siblings, who have all moved overseas. Mr. FU submitted that the defendant was cooperative with the Police throughout. He admitted 2 other offences on his own volition. Mr. FU stressed that the defendant acted alone, and no person was alarmed or injured on any occasion.

12.Charges 1, 4 and 5 cover a time span of 5 months. In the commission of Charge 5, the defendant wore gloves; used a torch, a screwdriver and an electric drill. He was no doubt a well-equipped burglar.

13.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. There is sufficient social welfare protection in modern Hong Kong for the poor to meet their basic needs. Being a released prisoner, the defendant must have known how to seek help.

14.The normal starting point for non-domestic burglary is 2.5 years' imprisonment. Based on the nature and value of the stolen items, the mode of stealing and the defendant being a serial burglar[1] as well as a repeated offender[2], I adopt a starting point of 3 years' imprisonment for each charge[3]. A one-third discount is given for the guilty plea, reducing the sentence to 2 years. Apart from this, I see no other mitigating factors which warrant any further reduction. The sentence for each charge is 2 years' imprisonment.

15.Bearing in mind the totality principle, I consider a global starting point of 5 years to be appropriate for all 3 charges. With the guilty pleas, the overall sentence becomes 40 months. Hence, I make the following order :-

(i) 8 months in Charge 4 to run consecutive to Charge 1; and

(ii) 8 months in Charge 5 to run consecutive to Charges 1 and 4.

Thus, arriving at a total prison term of 40 months.

Please refer to CACC120/2014 for the relevant appeal(s) to the Court of Appeal.