HKSAR v. Chow Chi Keung and Another

DCCC 69/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 69 OF 2014

-----------------------------------

-----------------------------------

----------------------------

Reasons for Sentence

----------------------------

1.D1 pleaded guilty to charge 1 (burglary) and charge 2 (attempted theft). D2 was convicted of charge 1 after trial.

Facts

Charge 1

2.The burglary in charge 1 took place in a non-domestic premises situated at room 1207 of Hilder Centre, Sung Ping Street, To Kwa Wan. The burgled premises had been under renovation between July and December 2013.

3.On 16 November, at around 5pm, Mr. Lui finished his work at the premises for the day, locked up the wooden door with a combination lock, and was the last worker to leave the premises. Inside the premises were large amount of renovation raw materials.

4.On 18 November, at around 9:10am, Lui returned to the premises to find the lock had been pried open and the wooden door ajar. Mr. Lui immediately informed his contractor and reported the matter to the Police.

5.Upon checking, 7 bundles of brand new copper pipes still in their wrappings and some copper materials were found to be missing from the premises. They were worth about $2,500 and $500 respectively.

6.DPC 9897 was one of the Police officers who took part in the investigation of the case. He examined footages from 2 closed circuit television cameras installed in the area of the burgled premises on the same day.

7.The defendants were later arrested and upon comparison between the arrested persons and the images shown in the closed circuit television footages, DPC 9897 concluded that D1 and D2 were in fact 2 of the perpetrators of the burglary in charge 1.

8.In relation to D1, his participation was confirmed through his own admission to the summary of facts. In relation to D2, he was found guilty after I confirmed through the viewing of the closed circuit television images and comparing them with contemporaneous photographs of D2 that the images show the same person.

Charge 2

9.Mr. Ng, a security guard on duty at Hop Shing Commercial Building in To Kwa Wan at around 10am on 18 November 2013 saw two strangers at the building, acting suspiciously. One of the 2 men was later identified to be D1.

10.Through the building’s closed circuit television system, Mr. Ng saw them got into a lift and went up to the 22^nd floor. Mr. Ng immediately went up to the same floor to have a look. When he walked on to the rooftop, he saw one of the males squatting atop the fire pump, prying at the anti-lightening copper piece installed on the side of the building, while the other male was squatting even higher up near the water tower appearing to be also prying at something.

11.Mr. Ng immediately locked the door to the rooftop and called the Police. One of the males discovered Mr. Ng’s presence and the 2 of them quickly climbed down and left the rooftop through another door. Mr. Ng shouted for them to stop but they ran away.

12.D1 was later investigated on 25 November 2013 when he was asked about the said incident. Under caution, D1 said that he did go up there with Ah Kong but that he was not able to steal anything. D1 was then arrested for attempted theft. Under caution, D1 said that in this case, he and Ah Kong was not able to steal anything, was discovered, but they were able to steal something at Sung Ping Street. D1 was then cautioned again and asked what he meant by that. D1 said that the other day he and Ah Kong and Ah Ming went up to the industrial building at Sung Ping Street, the other two moved some electrical wirings to sell and had given him $200. D1 further said that his wife was pregnant, he had no money, now the baby was born, he wished for a chance.

Previous Convictions

D1

13.D1 has 13 previous convictions, with 7 of them being for offences involving dishonesty. One of those 7 convictions was for burglary in 1990 when he was fined $1,000. His last previous conviction was on 19 February 2013 when he was convicted of criminal intimidation and sentenced to 2 months’ imprisonment, suspended for 3 years. D1 therefore committed the present offences whilst under the suspended sentence.

D2

14.D2 has 21 previous convictions, with 3 of those similar to the present charge 1. The defendant’s first burglary conviction was on 12 December 2000 when he was sentenced to DATC at the Tuen Mun magistracy. His second burglary conviction was on 21 October 2009 when he was sentenced to 20 months’ imprisonment in the District Court. His third burglary conviction was on 14.4.2011 when he was sentenced to 16 months’ imprisonment in the District Court.

15.D2 latest conviction was for Theft on 10 June 2013 when he was sentenced to 6 months’ imprisonment at the Eastern Magistracy. D2 was last released from prison on 14 September 2013.

Mitigations

D1

16.D1 is 40 years old, educated up to P.6 level. He used to work as a scaffolding worker. He was last released from jail in September 2011. He lives in Hung Hom with his 4 daughters aged 3, 2, 1 and 1. D1’s wife is 33 and a full time housewife. D1 had been unemployed for a few years but before that he used to work as a scaffolding worker earning about $15,000 per month. Now his family is on CSSA. D1 committed the present offences because of his dire financial situation, because the youngest 2 daughters had only been born, D1 wanted to find more money and foolishly committed the present offences.

17.The criminal intimidation conviction was in relation to a domestic matter, when the defendant said intimidating words to his wife who reported the matter to the Police and ended up in court. D1’s wife has already forgiven him. Ms. Chui has written a letter to plead for leniency for the defendant.

18.Although the defendant has many previous convictions, his only other burglary conviction was when he was 15 years old and the matter was dealt with in the juvenile court.

19.The defendant cooperated with the Police, told everything about the case and admitted that he had taken part and confessed. D1 had indicated his plea of guilty when the case was brought up for mention.

20.Mr. Fu told the court that he had explained the sentencing guidelines to the defendant. Although it is not the defendant’s first burglary conviction, Mr. Fu submitted that the court should not hold the old conviction against the defendant and should adopt the usual starting point of 2.5 years imprisonment. Mr. Fu also suggested that part of the sentences should be ordered to be served concurrently under the principle of totality. As for the breach of the suspended sentence, Mr. Fu submitted that it was some 9 months into the suspension and that the original conviction was for a matter of a wholly different nature, and submitted that the suspended sentence should be made concurrent if activated.

D2’s mitigation

21.D2 is 34 years old. He was educated up to form 5 level. He had worked as a clerk, waiter and sales before. The defendant’s parents are 66 and 54 and a retired bus driver and a housewife respectively. The defendant’s elder brother is 38 and lives with the defendant’s parents. The defendant’s elder sister is 39, married but not living together. The defendant is married and is father of 2 daughters aged 9 and 1 and a half. The defendant separated with his wife before his arrest in the present case and they are now in the process of getting divorced. The defendant’s wife was released from the DATC last month. During her treatment, the daughters was taken care of by her mother. The defendant has a Malaysian girlfriend but she is now back in Malaysia.

22.Mr. Fan just pointed out that since D2 was convicted after trial there is nothing much to say in mitigation save for the fact that the loss was only around $3,000, which is not a substantial amount.

Sentencing guidelines

23.It is trite law that the usual starting point for burglary of a non-domestic premises is that of 2 and a half years’ imprisonment, subject to any mitigating or aggravating factors.

Sentence

D1

Charge 1

24.Having heard from Mr. Fu and having considered the circumstances of D1, I find that there is nothing to cause me to depart from the usual sentence. On the other hand, I do not take the defendant’s previous convictions as an aggravating factor.

25.I will therefore adopt a starting point of 30 months’ imprisonment and discount it by one third for the defendant’s guilty plea and sentence him on charge 1 to 20 months’ imprisonment.

Charge 2

26.The attempted theft involved not just D1 himself but an accomplice. No loss was suffered by the potential victim of the crime. This is however the fifth conviction for offences relating to theft since 2008. D1 is a repeated offender in this regard.

27.I will adopt a starting point of 12 months’ imprisonment, discounting it by one third for the defendant’s guilty plea and sentence him on charge 2 to 8 month’s imprisonment.

Totality

28.The 2 offences were committed on different days but just 2 days apart. Charge 1 involved D1 and two others, while charge 2 involved D1 and one person from Charge 1. The offences were committed at different locations but in the same To Kwa Wan area.

29.Standing back, I order that the sentences in charge 1 and 2 be served wholly consecutively.

Activation of D1’s suspended sentence

30.D1 knew he was under a suspended sentence, yet he chose to proceed to take part in the burglary and the attempted theft. Not only did he take part in the burglary on 16 November, he then decided to take part in the attempted theft 2 days later on 18 November. He showed scant regard for the law and the order of the court as well as the chance that the magistrate had seen fit to give him.

31.I order D1’s 2 months suspended sentence be activated in full. I order the sentence to be served wholly consecutively to the sentences in the present case.

32.D1 is therefore sentenced to a total of 30 months’ imprisonment.

D2

Charge 1

33.As mentioned above, the usual starting point for burglary of a non-domestic premises is that of 2 and a half years’ imprisonment.

34.Having heard from D2’s counsel in mitigation, I find that there is no reason to depart from the guidelines. On the other hand, I find that the defendant is a repeated offender. This is his fourth conviction for burglary. The defendant also has scant regard for the law and the latest sentences did not deter him from committing the present offence. I find his repeated offending and his commission of the present offence just 8 weeks after he was last released from prison aggravating factors.

35.Bearing in mind the sentencing guidelines, but taking into consideration the aggravating factors, I will adjust the starting point upwards by 3 months and sentence the defendant to 33 months’ imprisonment. Since D2 is convicted after trial, there is no discount and D2 is sentenced to 33 months’ imprisonment.