HKSAR v. Tang Wan Cheung

DCCC 775/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 775 OF 2014

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Reasons for Sentence

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1.The defendant has pleaded guilty today to one count of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.The facts of this case are very straightforward. On 19 July this year, the victim, who lived on the 2nd floor of a village house, locked up his premises and went out.  That was at about 5 pm, and no one was left at home.

3.In the same village at about 7.40, a police officer saw the defendant enter Tin Sum Village in Shatin emptyhanded. Obviously the police carried out an observation operation of some kind, because at about 8.05 pm, a police officer observed the defendant leaving the same village.

4.What was noteworthy was that as the defendant left the village, he was carrying a bag.  When he had entered the village, he was emptyhanded.  Arousing the suspicion of the police, the defendant was stopped and his bag that he was carrying was subsequently searched.

5.In that bag the police found some tools, a torch, a mask, a pair of gloves, and personal belongings such as jewellery and cash.  All these personal items and cash were subsequently discovered to belong to the victim or the victim’s family members.  Even the bag that contained all these items belonged to the victim.

6.The defendant was cautioned by the police, and under caution he confessed that he had burgled a 2nd floor flat of a village house in that village.  He admitted that he had climbed up pipes to the balcony and broken into the premises with tools.  He then took the police to the victim’s home and pointed out the burgled premises.

7.The victim was notified, and came home to confirm that his premises had been burgled and that all items in the bag carried by the defendant belonged to him or his family.

8.In essence, the defendant was caught red‑handed leaving the scene of his crime.  The evidence was overwhelming even without a confession.

9.The defendant is not a man of clear record.  The defendant has many previous similar convictions.  In fact, of the 28 previous convictions, 25 relate to burglary offences.  He can be described as a recidivist, a persistent offender.  According to the authority of HKSAR v Chan Wei Chi [1999] 2 HKLRD 830, this fact can be considered an aggravating factor, a factor that the court can take into account to increase a starting point.  In fact, the defendant’s last conviction in June 2011 was as a result of a trial before myself.  The defendant was convicted by me of three charges of attempted burglary, and I sentenced the defendant to 3 years and 4 months for each charge.  I in fact took the defendant’s previous convictions into account, and I added 4 months to the usual starting point for the very same aggravating factor I identify again.

10.The authorities are clear.  For a burglary of a domestic premises, a 3-year starting point would be normal where there are no aggravating or mitigating factors.

11.Having heard mitigation, I find that there are no mitigating factors that exist.  I have been informed that the defendant on the material day was upset and troubled as a result of his marital breakdown and had a few drinks before committing the offence.  That is not a mitigation that I can attach weight to even if I accepted that was true.

12.However, I do find that an aggravating factor exists, and once again I will add to the usual starting point to reflect this aggravating factor.

13.Defendant, please stand up.  I have taken into account the facts of this case and the fact that although the items stolen were valuable, the victim ultimately recovered his belongings.  I have also taken into account mitigation put forward and the defendant’s background.  I will also take into account the aggravating factor I have identified.

14.Where I would normally consider a 3-year starting point appropriate, I now consider 3 years and 6 months appropriate.

15.The defendant has pleaded guilty and is entitled to a discount of one-third.

16.After that discount, the defendant is sentenced to 2 years and 4 months’ imprisonment.

Do you understand the sentence?