HKSAR v. Chu Ming Yan
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DCCC 588/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 588 OF 2014 ----------------------
--------------------- Reasons for Sentence --------------------- 1.The defendant has pleaded guilty to one charge of burglary. It occurred on 4 February of this year at the Lok Sin Kui (Caring Foundation) Elderly Care Limited, in Tak On Mansion in Tai Kok Tsui. 2.The premises in question were the elderly care home, and at all material times the premises were a nursing home for the elderly. Although run commercially, they are obviously residential premises, and for the purpose of sentencing should be treated as a domestic premises, and that is conceded by counsel for the defendant. 3.The offence occurred in the early hours of the morning of 4 February 2014, when a witness saw some items on the floor of the kitchen of the nursing home, and that caused the witness to check the CCTV footage of the nursing home, and that footage showed the defendant in the large hall of the nursing home at around 3.46 in the morning. The defendant was seen to go to the nurses’ station and then the windows of the large hall. 4.Shortly after, the manager of a bar below the nursing home saw a foot on the signboard, which was the defendant exiting the premises. Then, around 6 o’clock in the morning, police officers intercepted the defendant. When he was intercepted, a screwdriver and a torch were found in the right front pocket of his trousers and he was holding a one-metre long bamboo stick. 5.The defendant remained silent under caution. 6.The property taken during the course of the burglary was a Smartphone, an identity card, an Octopus card, and cash of HK$100. 7.The defendant admitted all those facts, and I convicted him accordingly. 8.As far as his antecedents are concerned, the defendant is 40 years old, educated to Form 3 level, and has worked as a decoration worker. He is currently sentenced to a drug addiction treatment centre at the Hei Ling Chau Correctional Centre. 9.He is single, and lives with his mother and stepfather. 10.The defendant has a number of previous convictions. A total of 20 were recorded; a number for possession of dangerous drugs and theft, and offences in the late 1980s for robbery. Of more significance are two offences of burglary in 2004 and an offence of burglary in 2007, for which the defendant was respectively sentenced to 20 months’ and 22 months’ imprisonment. Since then the defendant has committed further offences of possession of dangerous drugs, but was not convicted between 2009 and 2013. In July and September of this year, the defendant was sentenced to a drug addiction treatment centre for offences of possession of dangerous drugs and resisting arrest. 11.The defendant admits that he is a drug addict. In terms of his mitigation, the defendant submits that this was an opportunistic burglary that arises out of his drug addiction which is currently being treated at an addiction centre, but no weapons were used, and he simply sneaked into the premises, so there was no elaborate pre-planning. 12.The sentencing guidelines for offences of burglary are clear. Sentencing for a burglary of a domestic premises where there are no aggravating or mitigating factors will result in a starting point of 3 years’ imprisonment. The only aggravating factors that are present in this case would be the defendant’s previous convictions in 2004 and 2007 for the same offence, which would perhaps indicate that the defendant has not responded to the deterrent nature of those sentences and has continued committing offences of this nature. 13.Against this there is counsel’s submission that the last of those offences was committed some seven years ago, and the defendant since then has not committed offences of dishonesty, although he has committed offences involving assaults and possession of dangerous drugs. 14.I consider that, given the nature of the premises as admitted in the facts, it should be treated as a domestic premises. I consider that although I pay attention to the defendant’s previous convictions, they are now of a sufficient age for me not to treat them as an aggravating factor in this offence. 15.I will take a starting point at 3 years’ imprisonment, and I will reduce that to 2 years’ imprisonment for the defendant’s plea of guilty. 16.So the sentence will be one of 2 years’ imprisonment.
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