HKSAR v. Chan Ka Chung

DCCC 1057/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1057 OF 2014

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to a charge of "Burglary". The burgled premises are a ground floor tea shop in Yau Ma Tei.

Summary of Facts

2.Madam MAK (PW1) is an employee of a tea shop situated at the address stated in the Charge ("the Shop").  About 10:00 pm on 4 November 2014, PW1 closed and locked the roller shutter of the Shop.  She then used a nylon strap to tie the key to the handle of the roller shutter, and hid the key underneath the locked roller shutter.

3.About 9:15 am on the following day, PC 14342 (PW2) saw the defendant squatting outside the Shop, holding in his hands an electronic scale (E1) and a tray (E2).  PW2 noticed that roller shutter of the Shop was opened, but no one was inside the Shop. Upon inquiry, the defendant revealed to PW2 that he saw the key having been inserted into the lock of the roller shutter.  He therefore opened the roller shutter, entered the Shop and took E1 and E2.

4.PW2 arrested the defendant.  He remained silent under caution.

5.PW1 later confirmed that E1 and E2 belonged to the owner of the Shop.  They were originally placed on a shelf inside the Shop.  Their total value is approximately $900.

Mitigation & Sentence

6.The defendant is now 39 and single.  He has 39 conviction records which include 1 "Burglary" offence, 29 "Theft" offences, 2 "Going equipped for stealing" offences and 2 deception-related offences.  He was last sentenced to prison in July 2014 (for a "Fraud" offence) for 5 months.  He was released on 9 October 2014.

7.Defence counsel Mr. CHENG informed me that the defendant used to be a construction worker, but in late 2014, he began to receive social welfare.  In mitigation, Mr. CHENG submitted that the instant burglary is not a premeditated offence.  No tools were used by the defendant and there was no breaking in.  The defendant committed an opportunistic burglary.  Mr. CHENG cited HKSAR v KWOK Wing Kam CACC 394/2010 (unreported Chinese judgment) to ask for a lower than usual starting point.

8.I accept that the present case may be a border line opportunistic burglary. Although the key was hidden underneath the roller shutter, the defendant still had to locate it before he could use it.  I would not speculate on how the defendant came up with the idea of looking for the key in the first place or how he managed to find the key.  I would simply give him the benefit of doubt and treat the situation as his pure luck.

9.The normal starting point for non-domestic burglary is 2.5 years' imprisonment.  I accept that there was no breaking in by the defendant and all the stolen properties were recovered.  I also assume that the Shop suffered no actual loss and that no one was alarmed by the defendant's entry or presence.  On the other hand, the defendant has an appalling criminal record and his convictions are primarily theft-related offences.  Furthermore, he committed the present offence in just 1 month after being released from prison.  Even if I treat the present case as an opportunistic burglary, I still have all the reasons to raise the starting point as deterrence.

10.Mr. CHENG has done all he could to mitigate on behalf of the defendant.  In my view, all the mitigating factors, if any, have been set off by the defendant's theft-dominant conviction records. I have already displayed my leniency by not increasing the starting point.  I will adopt the usual starting point of 2.5 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 20 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  I sentence the defendant to 20 months' imprisonment.