HKSAR v. Shek Chi Kong

DCCC 3/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 3 OF 2015

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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 are that the defendant on 3 November 2014, having entered as a trespasser part of a building known as “Shun Fat Food Company” located at ground floor, numbers 1-2 Man Shang Street of Shek Wu Hui, Sheung Shui, stole therein two boxes containing a total of 24 cans of milk powder.

Outline of facts

2.Mr. Tso, a staff of Shun Fat Food Company, left the shop at 9pm on 2 November 2014 after securing it with 8 pieces of wooden boards. Upon his return at 8:45am the following day, he found that one of the boards had been removed and 2 boxes of milk powder with a total of 24 cans worth $5,760 had gone missing.

3.The matter was reported to the Police and during investigation, closed circuit television footage from the shop opposite to Shun Fat captured the defendant wandering around and peeping into Shun Fat at 5:50am on 3 November. Between 5:52am and 6:05am, the footage show the defendant pulling down one of the wooden boards, entered the shop from the opening, came out, returned with a trolley, loaded boxes from the shop into the trolley and then pushing the trolley away. 

4.The defendant was intercepted during a routine stop and search and was identified by Police officers as the person seen in the above closed circuit television footage. The defendant admitted under caution that he did burgle Shun Fat and stole the two boxes of milk powder. The defendant confirmed the details of the burglary in his subsequent video recorded interview and disclosed that the milk powder were sold at $3,000 to an unknown female in Choi Yuen Estate.

Previous convictions

5.The defendant has a total of 22 convictions, with only one being for burglary back in 1985. Since December 2010, the defendant has been convicted of theft 8 times. His latest conviction was on 10 June 2014 when he was sentenced to 2 months’ imprisonment. The defendant was last released from imprisonment on 20 July 2014.

Mitigation

6.The defendant is 42, divorced, lives with his 65 year old mother and his 15 year old daughter in public housing. The defendant’s ex-wife lives in mainland China and seldom returns to Hong Kong. She does provide a small sum of money for their daughter’s maintenance. Prior to his arrest on this occasion, the defendant was working as a part-time transportation worker earning $8,500 per month. The defendant is the family’s sole breadwinner.

7.According to Mr. Li, the defendant went to the vicinity at around 5am looking for some valuable goods to take away. The defendant then saw the shop surrounded by wooden boards and how it was unlocked. The defendant took up the opportunity and removed one of the boards, opened the door easily and entered. None of the wooden boards were damaged. The defendant is an opportunistic burglar. He had no plans or premeditation.

Sentencing Guidelines

8.It is trite law and not disputed by the defence that the defendant’s burglary was of a non-domestic premises, and that the proper starting point in a case of burglary of non-domestic premises is 2 years and 6 months’ imprisonment, in the absence of aggravating or mitigating factors.

Sentence

9.The maximum sentence for burglary on conviction upon indictment is that of imprisonment for 14 years.

10.Mr. Li for the defendant submits that the defendant’s burglary was an opportunistic crime. Having carefully considered the circumstances, I find that it was in fact the case.

11.An opportunistic crime is a crime that is committed because of an opportunity arising without prior knowledge of the offender. There would have been no planning beforehand. I find that even if someone is walking up and down the street with the intention to steal something in case the opportunity comes up, and the opportunity did come up say in the form of a shop door left open, it would still be an opportunistic crime if that person did burgle the shop.

12.For our present case to not be an opportunistic crime, there must be evidence to show that the burglar had targeted the shop, perhaps scouted a few times about their closing or opening hours, waited for the shop to be cleared and then commited the burglary.

13.As the facts stand, they can support either scenario, that is to say, the defendant could have had visited the site before and had waited for the right time to enter, or it could also have been the defendant choosing to walk along the streets at 5:50am looking for things to steal and came upon the unlocked shop and made up his mind there and then to commit the burglary.

14.There is no evidence to prove, or allow the court to infer, that one is more likely than the other. That being the case, the benefit of the doubt must be given to the defendant and I therefore find that it was an opportunistic burglary.

15.There are no tools involved in the burglary and there is no evidence of significant damage to shop property. The value of the property stolen is $5,760, which is not a particularly small amount, but also not a huge amount.

16.I find that a proper starting point is that of 2 years’ imprisonment in the circumstances.

17.I find that there is one aggravating factor in our present case, which is the defendant’s conviction record. The defendant has a total of 22 convictions starting from 1985 when he was just 13 years old. The most significant part of this conviction history is from 2010 to 2014, when the defendant was convicted on 7 different occasions (8 convictions) for the same offence of theft. He was sentenced to imprisonment on each of those occasions. The defendant was last released from imprisonment on 20 July 2014. He committed the present offence on 3 November, merely 106 days later.

18.I find that the starting point needs to be increased to take into account this aggravating factor of persistence and the failure of previous sentences to deter. I do so by increasing it by 3 months to 2 years and 3 months’ imprisonment.

19.Having considered what was put forward in mitigation, I find that the only mitigating factor is the defendant’s guilty plea. I grant the defendant the customary one-third discount and sentence him to 18 months’ imprisonment.