HKSAR v. Cheung Kin Ping
|
DCCC 1003/2014 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 1003 OF 2014 -----------------------------------
-----------------------------------
---------------------------- Reasons for Sentence ---------------------------- 1.The defendant faces 4 counts of burglary and 1 count of attempted burglary. He pleaded guilty to the 4 burglary charges, being charges 1, 2, 3 and 5. Upon the defendant’s conviction on those charges, the prosecution applied to keep charge 4 on file, not to be proceeded with without the leave of court, and it was so ordered. Outline of facts Charge 1 2.Mr. Hussain resided on the third floor of Kwan Tak Building in Yuen Long. 3.Mr. Hussain went to bed at home at around 1 am on 9th August 2014. He remembered locking the door but was not sure if he also locked the window next to it. Mr. Hussain woke up at around 5 am to find the door opened with signs of ransacking in his apartment. 3 Samsung mobile phones, a gold ring and $1,800 cash was found missing. Together they are worth around $14,800. Charge 2 4.Mr. Kwok resided on the same floor of the building as Mr. Hussain. 5.Mr. Kwok went to bed on 15th August 2014 at around 8:30 pm after closing his door without locking it. Mr. Kwok woke up at around 4:50am the following morning and found his 2 mobile phones, Octopus card and $1,100 cash missing. Together they are worth around $5,600. Charge 3 6.Mr. Yuen resided alone at a rooftop apartment of the same building as Mr. Hussain and Mr. Kwok. 7.On 21st August 2014, Mr. Yuen returned home in the evening to find the defendant cooking noodles in his kitchen. Mr. Yuen’s PS3 game console and his computers were placed inside a plastic bag right next to the defendant. Mr. Yuen took a knife from the kitchen for self-defence and confronted the defendant. The defendant knelt down and asked him not to call the Police. 8.Mr. Yuen took a photo of the defendant with his mobile phone. The defendant fled when Mr. Yuen went to check to see if he had lost anything. Mr. Yuen did not at first report the matter to the Police since he did not suffer any loss. Charge 5 9.Mr. Lee resided at Shung Ching San Tsuen in Yuen Long. 10.Mr. Lee went to sleep at around 3 am on 27th August 2014 after closing the main door and the metal gate without locking it. Mr. Lee’s father woke up at around 5:50 am and found both the rear door and the metal gate open. He thought nothing of it, closed them and went back to sleep. 11.Mr. Lee woke up at around 7 am and found his mobile phone (worth around $5,588) missing, with ransacking signs in the living room. His father also lost a watch (worth around $150) and the matter was reported to the Police. 12.On the same day, at around 3:45 pm, Police officer PC58580 followed up with Mr. Yuen’s (charge 3) report and viewed the photo Mr. Yuen took of the defendant. Police officers conducted a sweep in the area of Kwan Tak Building and eventually located and arrested the defendant at around 8 pm. 13.Under caution in various subsequent interviews, the defendant admitted to the following. 14.In relation to charge 1, the defendant acted as a lookout for his friend “Chan Ka Lung” and was given $500 as a reward. 15.In relation to charge 2, the defendant entered the premises at around 3 am by climbing down the water pipes and entering the premises through the opened window. He stole the mobile phones, Octopus card and $1,100 cash. 16.In relation to charge 3, the defendant felt hungry after stealing the PS3 game console and computer so he cooked noodles in the kitchen. 17.In relation to charge 5, the defendant entered the village house at around 3 am in Shung Ching San Tsuen and stole a phone and a watch. The watch was still in his bag when he was arrested. Previous convictions 18.The defendant has 10 previous convictions, with 8 relating to dishonesty. His last conviction was on 17th September 2014 when he was sentenced to 2 months’ imprisonment for theft. This is however the defendant’s first burglary conviction. Mitigation 19.The defendant is 20 years old. He was only 12 when he was first convicted of an offence of theft and sentenced to probation. 20.The defendant comes from a broken family. His parents divorced a long time ago and the defendant’s mother left home many years ago and has lost contact. The defendant has two sisters who are around 20 and 23 years old. The defendant’s father is closer to the sisters than the defendant. The defendant has more or less been alone since he was about 11. 21.Just as the defendant had explained to the Police in his video recorded interview, the defendant has been homeless since his discharge from the Training Centre. He had used up all his money and so he committed the burglaries to make a living. 22.Given the fact that the defendant is under 21 years old and the fact that burglary under s.11 of the Theft Ordinance is not an excepted offence, Mr. Chan for the defendant reminded the court that s.109A of the Criminal Procedure Ordinance, Cap.221 applies. 23.S.109A stipulates that “no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.” 24.Having heard from Mr. Chan and having considered the defendant’s personal circumstances, I decided to call for a Training Centre report before sentencing the defendant. 25.It is Assessment Officer Liu’s view that another period of comprehensive disciplinary training coupled with statutory supervision might be beneficial for the defendant in helping him “to develop more insight into his problems and to strengthen his law-abiding mindset”. This is despite what Officer Liu said at page 5 of his report, that in the interview, the defendant “displayed no remorse for his misdeeds and just defied assistance from the rehabilitation staff on assessment duties. Obviously, he had not yet developed any insight into his problems despite his blemished criminal records.” Sentencing tariff 26.It is trite law that the customary starting point for burglary of a domestic premises is that of 3 years’ imprisonment, subject to any aggravating or mitigating factors. It is not disputed that all the premises concerned in the present charges are domestic premises. Sentence 27.The maximum sentence for burglary on conviction upon indictment is that of imprisonment for 14 years. 28.Having read the defendant’s Training Centre report, despite the unfortunate personal circumstances of the defendant, given the history of convictions and the seriousness of the present offences, and the negative attitude that the defendant had adopted in his previous detentions, I find that in order to deal with the defendant effectively in the present case, an immediate custodial sentence is the only appropriate sentence. The defendant have had plenty of opportunities to reform himself, yet he chose not to cherish the chances given to him. I find that a term of imprisonment is the only remaining method of dealing with the defendant that might persuade him to stop breaking the law in future. Charge 1 29.This burglary took place in the middle of the night while Mr. Hussain was sleeping. There was always a risk of the burglar waking him up leading to a confrontation. The defendant committed this offence with an accomplice and for a reward. The defendant is a persistent offender with 7 previous convictions relating to dishonesty. I find that these are aggravating factors. I find that the fact that the defendant acted as a lookout does not make the defendant less culpable. 30.Bearing in mind the customary sentence, I adopt a starting point of 3 years’ imprisonment. I increasing this sentence by 3 months in view of the aggravating factors mentioned above. 31.As for mitigating factors, while I fully sympathize with what the defendant had to go through so early in his life, the defendant was already 20 years old when he committed the present offences, I find that he, as an adult, must be able to realize that what he chose to do would lead to the corresponding consequences. There are institutions and government departments ready to help people in the defendant’s position. To burgle in order to ‘make a living’ is plainly wrong and cannot be excused. 32.I find therefore that the only mitigating factor is the defendant’s guilty plea. The defendant is sentenced to 2 years and 2 months’ imprisonment on charge 1. Charge 2 and 5 33.The burglaries in charge 2 and 5 were committed in the middle of the night while the occupants of the premises were sleeping. The defendant is a persistent offender. These two are the relevant aggravating factors. 34.Bearing in mind the customary sentence, I adopt a starting point of 3 years’ imprisonment. I increasing this sentence by 2 months in view of the aggravating factors mentioned above. 35.For the same reason given in relation to charge 1, the only mitigating factor is the defendant’s guilty plea. He is sentenced to 2 years and 1 months’ imprisonment on each of charge 2 and 5. Charge 3 36.This burglary took place in the early evening. Not only did the defendant steal from the premises, he stayed behind to cook himself noodles. It must be the case that the defendant was very hungry or else he would not have risked the resident returning home. On the other hand, when he was confronted by Mr. Yuen, he did not turn violent or put up resistance. With Mr. Yuen holding a knife, so many things could have gone wrong had the defendant chose to fight back. To his credit, he did not. He allowed his photo to be taken and then fled. 37.Given the circumstances of the commission of this offence, despite the aggravating factor of the defendant being a persistent offender, I will not increase his sentence based on this aggravating factor. For the same reasons given when dealing with charge 1, there are no mitigating factors other than the defendant’s guilty plea. 38.I adopt a starting point of 3 years’ imprisonment and discount it to 2 years’ imprisonment upon the defendant’s guilty plea. Totality 39.The 4 burglaries took place on 4 different days. Charges 1, 2 and 3 were all committed on apartments in the same building in Yuen Long. The burglaries cannot be said to be of one single transaction. Yet, if the sentences are to be served wholly consecutively, it would be far too severe. 40.Stepping back and taking into consideration the principle of totality, I order that 2 months of each of the sentence of charge 2 and 3; and 3 months of charge 5 be served consecutively to the sentence of charge 1, the balances to be served concurrently, making a total of 2 years and 9 months’ imprisonment. 41.The final total sentence for the 4 charges is therefore that of 2 years and 9 months’ imprisonment after plea.
|