HKSAR v. Lee Chi Ming

DCCC 210/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 210 OF 2014

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Reasons for Sentence

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1.The defendant has pleaded guilty to a charge of burglary.

2.The victim in this case, Yu Shu-kei, and her family live at the 2nd Floor of No. 409 Reclamation Street in Mongkok, Kowloon.  On 8 January 2014, at about 1350 hours, she and her elder sister were at the premises.  Some person rang the doorbell and when PW1 went to open the wooden door, she saw through the iron grille that there was no one immediately outside but she saw a man walking down the staircase of the building.  The man was wearing a cap and black clothes.

3.Shortly before that incident, an officer was on patrol at the junction of Reclamation Street and Nelson Street, and he noticed the defendant pushing open the main gate of 409 Reclamation Street.  The defendant was wearing a cap and black clothes and carrying a shoulder bag, and he was behaving suspiciously, and before entering the building, he was looking around.   

4.The officer followed the defendant to the building and pushed open the main gate, and the officer saw the defendant walking quickly down the staircase of the building and intercepted him.  The defendant admitted that he did not live inside the building.  The officer searched the shoulder bag which the defendant was carrying and found a hammer, a chisel, a pair of gloves and two screwdrivers.

5.Under caution, the defendant admitted that he intended to burgle the premises as he had no money.  He admitted that he rang the doorbell of PW1’s flat and because somebody opened the door, he was scared and fled.  When arrested and further cautioned, he said that he did not have enough money for Chinese New Year and so he brought the tools with him to commit the burglary and to steal money.

6.In a video-recorded interview, the defendant admitted that he brought the tools from his home.  He said he was going to use the tools to prise open doors and iron grilles if required.  He said that somebody opened the door and he fled via the staircase.  He admitted that had no one been inside the premises, he would have gone inside to steal.

7.The defendant has been before the court on five previous occasions.  His first appearance was in the year 2000 when he was placed on probation, and that order was discharged in 2001.  He was sent to the drug addiction treatment centre.  In 2004, for possession of arms, he was sentenced to 8 years’ imprisonment.  In 2010, for claiming to be a triad member, he was sentenced to 6 months’ imprisonment.  His last appearance was in June 2011 when for two counts of blackmail, he was ordered to go to prison for 16 months on each of the sentences to run concurrently.  I am told that he was released from that sentence on 24 March 2012.

8.The defendant is 37 years of age.  He was educated to Form 2 secondary level.  He has never been in stable employment. He is divorced and lives with his parents and elder sister in Kowloon.  I am told that after he was last released from prison, he had a real problem finding employment but eventually he did find work at a construction site on a casual basis, earning some $10,000 per month.  His mother works at a vegetable store and he sometimes helps her with that work.

9.I am told that the reason for the commission of this offence was because of his father’s medical difficulties.  I am told that his father was diagnosed with liver cancer and had chemotherapy treatment and an operation.  I am told that his initial treatment was given in a government hospital.  I am told that he needed further treatment and in order to expedite that treatment, it was decided to send him to a private hospital which of course was expensive.  I am told that he extended his credit card liability in respect of those expenses and wanted to pay those off to avoid excessive interest charges.

10.The defendant is of course to be given credit for his guilty plea and also for the fact he admitted the offence immediately when he was detained by the officer and made no attempt to run away.  

11.Counsel for the defence has placed before me the case of HKSAR v Tam Ying Choi CACC 266 of 2012, a case which also dealt with a defendant who faced charges of burglary.  However, I note that the factual scenario in that case is very different to what we are facing today.  What we are looking at today is a more common form of domestic burglary, and the courts have said that for domestic burglaries, the usual starting point should be 3 years’ imprisonment. 

12.I feel sympathetic to the defendant concerning his father’s illness but that it is no justification for going out and committing a burglary.  I note that he made no mention of that when he was arrested and interviewed by the police. 

13.Although the defendant has no similar previous convictions, he does have a bad record.  Since 2004, he has spent most of his time in prison, and he was released from prison on 24 March 2012.  I am told that he had difficulty getting employment but he had secured casual employment, earning $10,000 per month.

14.The current offence is not one that was committed on the spur of the moment.  He decided that he was going to burgle premises and looked for an opportunity to do so.  He equipped himself with a hammer, a chisel, a pair of gloves and two screwdrivers.  In my view, there is nothing in the mitigation advanced which should influence the court in reducing the usual starting point.  There is also nothing which indicates the court should use a higher starting point.  The defendant made efforts to make sure that the premises he did decide to enter were not occupied.

15.In all the circumstances, I adopt the usual starting point of 3 years’ imprisonment and give the defendant full credit for his guilty plea.  The defendant will go to prison for 2 years.