HKSAR v. Chan Wai Ho

DCCC 460/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 460 OF 2014

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of Burglary, contrary to s.11(1)(b) and (4) of the Theft Ordinance, Cap.210. Particulars of the charge are that the defendant on 29 March 2014, having entered as a trespasser Room 1610, Un Shing House, Un Chau Estate, Cheung Sha Wan in Kowloon, stole therein one CCTV camera and $1,800 cash.

Summary of Facts

2.76 year old Madam Tsang lives alone at the burgled premises. She left home at about 10:56am on 29 March. Through the recorded footage of the closed circuit television system installed in the flat that was later reviewed, the defendant was seen to have entered the flat just 3 minutes after Madam Tsang had left. He ransacked the flat for 8 minutes, left and then returned 5 minutes later, did some more ransacking for 1 minute, left again, then returned again 2 minutes later and ransacked for another 1 minute. During his last entry, the defendant discovered the closed circuit television camera. He disconnected it and took away the camera.

3.Madam Tsang returned home at around noon without realizing that her flat had been burgled. It was only later when she noticed the missing camera and called her daughter, who came to the flat and reported the matter to the Police. In addition to the closed circuit television camera, PW1 found that about $1,800 cash she had put in a plastic bag was also missing.

4.PC9520 attended the scene and was making enquiries at the ground floor of the building when he saw the defendant walked past and entered the lift. PC9520 followed the defendant who got out on the 18^th floor. PC9520 followed him out and proceeded to ask the defendant where he had been. The defendant looked nervous and was unable to come up with a proper answer. The defendant was then cautioned by the Police officer, whereupon the defendant asked if he could be forgiven if he returned all the money to the old lady. The defendant also offered to take the Police officer to where had discarded the closed circuit television camera.

5.The defendant was then arrested for burglary. Under caution and in the subsequent video recorded interview, the defendant said he had borrowed $10,000 from one “Ah Shui” and it was Ah Shui who opened the door of the flat and told the defendant to go in to steal the money and take the closed circuit television camera. The defendant claimed that he had given all the stolen money to Ah Shui. The closed circuit television camera was later recovered but not the $1,800 cash that was stolen.

Previous Convictions

6.The defendant has 3 previous convictions, two of which were for theft in 2011. He was sentenced to 8 months’ imprisonment for the last theft conviction.

Mitigation

7.Ms. Cheung for the defendant very helpfully prepared a written submission, setting out in some detail the defendant’s background and I shall not repeat its contents in full here.

8.In gist, the defendant is 33 years old, married with a 6 year old son and his family lives together with the defendant’s parents. The defendant was educated up to Form 5 level and then received training in carpentry and joinery. The defendant has been employed by Wing On Furniture Company as a decoration worker for over 10 years, with a salary of $14,000 per month. The company continued to employ the defendant despite his last conviction for theft and imprisonment as a result.

9.Ms. Cheung pointed out in her submission that no one was injured in the burglary, only $1,800 was stolen, there was no professional planning or organization and the defendant did not use any tools to gain entry. It is Ms. Cheung’s submission that the burglary is ‘akin to a sneak thief who walked into open premises’.

10.On the day of the offence, although the defendant did make an appointment with Ah Shui to meet up, the defendant did not know that he was going to be asked to burgle the premises. In her written submission, although Ms. Cheung stressed that it was Ah Shui who opened the door for the defendant to enter the premises to burgle, there is no mention in her submissions as to how Ah Shui managed to get the door opened.

11.It is also Ms. Cheung’s submission that the defendant committed the offence after he had an argument with his father and that the defendant committed the offence feeling that ‘it might ease his pressure or depression’.

12.Ms. Cheung referred to the District Court case of HKSAR v Lai Sum, DCCC 110/2014 where a 3 year starting point was adopted for a burglary into premises where the victim was sleeping inside and where the defendant had 23 previous convictions with 3 for burglary and 3 for theft. The defendant there was also in breach of a suspended sentence when he committed the latest burglary offence. The learned District Judge rejected the defence submission that it was an opportunistic burglary, but noted that the previous convictions were some time ago and did not treat the defendant as a repeat offender of burglary, and proceeded to apply the guideline sentence for burglary of domestic premises.

13.Ms. Cheung suggested that given that the premises was occupied when the defendant entered as a trespasser in that case, it was more serious than our present case. I disagree with Ms. Cheung’s interpretation and find that even though the learned District Judge in that case did not find that fact to be an aggravating feature, it does not mean that entering the premises while it was empty automatically becomes a mitigating feature.

Guideline Sentence

14.The maximum sentence for burglary is that of 14 years’ imprisonment. It is trite law that, subject to any mitigating or aggravating factors, burglary of a domestic premises would attract a sentence of 3 years’ imprisonment for a first offender[1].

Sentence

15.The burglary happened during daytime when the flat was empty. Judging from his timing, one can infer that the defendant, and Ah Shui, had waited for Madam Tsang to leave. It is fortunate that Madam Tsang did not have to suffer the shock of someone breaking into her home while she was there. There is no evidence to show that the defendant is a professional burglar, his repeated entry and exit seems to suggest he is an amateur instead. The value of the stolen property is not a lot. There is no evidence of forced entry into the flat and the ransacking did not cause a lot of property damage. The defendant confessed as soon as he was confronted by the Police and had rendered full assistance.

16.On the other hand, although the defendant faces the charge alone, according to the amended summary of facts and confirmed by Ms. Cheung in her mitigation, it was another person who met up with the defendant and then opened the door for the defendant to enter to steal, he therefore did not commit the burglary alone. The closed circuit television footage showed the defendant went in and out of the premises during the burglary. Ms. Cheung did not inform the court why the defendant did so. Nevertheless, I find that these are not aggravating factors.

17.In relation to whether it was an opportunistic burglary, first, the defendant admitted in the amended summary of facts that he made the appointment with Ah Shui to meet outside the burgled premises, and that it was Ah Shui who opened the door and told the defendant to go inside to steal. Furthermore, the facts also stated that the burgled premises was secured by Madam Tsang when she left it attended. I find that it was in no way an opportunistic burglary, nor was the defendant ‘akin to a sneak thief who walked into open premises’ as Ms. Cheung submitted.

18.I have read all the letters submitted in mitigation. The overall impression is that the defendant is a filial son, a caring husband, a good father and a good employee. Nevertheless, I find that there are no special mitigating circumstances disclosed in the letters.

19.Despite the fact that this is not the defendant’s first criminal conviction and that he had two previous convictions for theft, I will balance that with the defendant’s good employment record and not increase his sentence for being a repeated offender.

20.Bearing in mind the facts of the case and that there are neither aggravating nor mitigating circumstances, I find that there is no reason to depart from the guideline sentence and I will adopt a 3-year starting point, discounting it to 2 years upon the defendant’s guilty plea and sentence the defendant to 2 years’ imprisonment.