HKSAR v. Cheung Kan Lam

DCCC 1040/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1040 OF 2014

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Reasons for Sentence
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1.The defendant pleaded guilty before me to one charge of burglary, the particulars of which are that the defendant, on 27 July 2014, having entered as a trespasser part of a building known as House No 28A, Eighteenth Street, Hong Lok Yuen, Tai Po, stole therein a large quantity of jewellery, one cufflink, one brooch, 21 segments of watchbands, 24 watches, 170 cake coupons, 170 cake coupon envelopes, 29 plastic bags, one passbook, two plastic covers, four keys, one keyring, three plastic plates, one torch, one wallet, one padlock, one SIM card, four birth certificates, one marriage certificate, cash of HK$69,910, cash of RMB14,283.50, cash of 130,000 Japanese yen, cash of $3,000 Singapore, seven bags, some red envelopes, one safe, eight caskets, one cardholder, one coin bag, one receipt, two car keys, one Singapore passport, one Singapore driving licence, one membership card, one Singapore electronic money card, and five Singapore identity cards.

A more concise summary of Admitted Facts

2.On the subject date at about 6 pm, the male resident, PW2, left the subject premises unattended after he secured all the doors and windows.  At about 8 pm the same day, the housemaid, PW1, returned to the premises.  When she was on the ground floor she heard noise coming from a higher floor.  She went out to the garden and looked up and saw the defendant on the canopy outside a room on the 1st floor.  The defendant fled by climbing onto the balcony of a neighbouring house. PW1 called PW2, who then alerted the police. 

3.At about 8.50 pm, PW2 returned home and found a window of a guestroom on the 1st floor prised open.  He also found signs of ransacking in the drawers of a wardrobe in the master bedroom on the 1st floor.  A safe was also missing from that wardrobe.  A crowbar not belonging to the household was found on the bed in the master bedroom.  PW1 and 2 later found that the items of property listed in the Particulars of Offence with a total value of just over $2 million were missing from the premises.

4.At about 9.20 pm, the police spotted the defendant at somewhere 800 metres from the premises.  The police gave chase. The defendant, whilst fleeing, threw his backpack into the bushes.  The police caught hold of the defendant.

5.A search of the defendant’s waist bag recovered a mobile phone and cash of HK$23,320.  A search of the backpack revealed numerous items later identified by PW2 and a female resident, PW3, as property missing from the premises, including jewellery, watches and cash of different currencies, as well as a rope, a buckle, a saw, a clamp, four pieces of saw blades, a spanner, a hook, a crowbar, three masks and a pair of gloves.

6.From a search of the vicinity of the premises the same night the police recovered a necklace identified by PW3 as her own. The police also found the missing safe, now broken, with some items nearby which were later identified by PW2 and 3 as their property.

7.The police arrested and cautioned the defendant.

8.The total value of unrecovered property was estimated to be about HK$1.4 million.

Defendant’s personal particulars

9.The defendant is 54 years old, born in the mainland and normally residing in the mainland.  However, he is a Hong Kong ID card holder.  He has five previous convictions, the first of which was in 1984 for robbery, for which he was sentenced to 6 years’ imprisonment.  Since then he had convictions for Theft Ordinance offences, the last two of which were both for burglary.  He was last released from prison in August 2012, having served a sentence of 2 years’ imprisonment.

10.The defendant had worked as a decoration worker, and has a history of hypertension and heart disease.  The defendant has three daughters from his first marriage, which resulted in divorce in 2011.  He has a son in 2011 by his girlfriend, who in 2013 has become his second wife.

Mitigation

11.Mr Ma, of counsel, submits that the strongest mitigation is the defendant’s plea of guilty, and he asks for the full discount.  The defendant’s young son is almost 4 years old (photo and copy birth certificate produced).  He will move to Hong Kong soon from the mainland.  The defendant married with the son’s mother in 2013 (marriage certificate produced).

12.Two letters written respectively by the defendant and his second wife were handed up.  The contents generally are that the defendant committed the offence out of economic need, and the whole family asks for leniency.

Sentence and Reasons for Sentence

13.I have considered the authorities handed up by the prosecution, namely AG v Lo Ching Fai [1996] 2 HKCLR 19, HKSAR v Chow Chak Man and Another [1999] 3 HKLRD 37, HKSAR v Tong Fuk Sing [1999] 3 HKLRD 710, HKSAR v Song Juanhua, alias Sung Kin Wa, and Others, CACC 362/2006, and Archbold Hong Kong 2015 paragraph 5-497.

14.This is a case of domestic burglary which happened in a house in the early part of a Sunday evening.  The defendant was well equipped with items fit and intended for committing burglaries, which shows there had been a degree of planning beforehand and also a degree of professionalism in the matter.

15.This, together with the two previous similar convictions and a conviction for robbery, and the fact that items of substantial value were stolen (about three-quarters in value of which are still unrecovered), in my view, constitutes aggravating factors, calling for a more condign punishment.

16.There is no evidence the defendant came to Hong Kong specifically for the purpose of committing an offence. 

17.There is Court of Appeal authority setting down guideline sentence for domestic burglaries.  The tariff sentence after trial is 3 years’ imprisonment.

18.I will adopt that sentence as a starting point. Because of the presence of aggravating factors, I consider it appropriate to add 6 months to the sentence before any discount is considered.

19.The defendant pleaded guilty and is entitled to a one‑third discount.  There is no other mitigating factor.

20.Defendant, please stand.  The defendant will go to prison for 2 years and 4 months.