HKSAR v. Tsang Kai on

DCCC 1015/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1015 OF 2014

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Reasons for Sentence

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1.The defendant was convicted after trial of one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210. Particulars of the charge are that he on 10^th January 2014 entered the premises Flat E, 13^th floor, Crystal Court, No.6 Man Wan Road, Ho Man Tin, Kowloon (“the flat”) as a trespasser and stole therein a number of items.

Outline of facts

2.Ms. Wong resides at the above address. On the evening of 10^th January, Ms. Wong’s elder sister found the flat burgled. Police officers attended the scene. Exhibits were seized and sent for forensic examination and analysis. DNA sample from the defendant matches the DNA found from a wooden jewellery box that was in the flat.

3.The DNA match proves that the defendant had had contact with the wooden box, and that given the circumstances of the location and  storage of the box, the only irresistible inference is that the defendant had been inside the flat as a trespasser and handled the wooden box, and that he had stolen the particularized items.

Previous convictions

4.The defendant was convicted and fined for the possession of dangerous drugs in 1999 and 2000. He was convicted for one count of burglary on 15 June 2001 and sentenced to 2 and a half years’ imprisonment. He was next convicted of two counts of burglary on 1 March 2010, for which he was sentenced, after appeal, to a total of 34 months’ imprisonment.

Mitigation

5.The defendant is 44 years old, born in Hong Kong and lives in Tsui Ping Estate with his mother who is of ill health. The defendant is educated up to F.3 level. He was last discharged from prison on 2 July 2011. The defendant has been working as a casino agent in Macau since 2011, earning about $30,000 per month. The defendant has no triad background and he looks after his mother together with one of his sisters.

6.In 2013, the defendant was involved in a relationship with a girl in China. In mid-2013, his girlfriend borrowed $130,000 from him and then disappeared. That ended their relationship and the defendant is now all by himself.

7.Ms. Cheung for the defendant points out that the defendant’s criminal records is not particularly bad. The premises in the present case was empty when burgled. Although a crowbar was found, it was not particularly heavy and the risk of injury to anyone is minimal. Ms. Cheung invites the court to pass as lenient a sentence as possible.

Sentencing guidelines

8.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 the premises concerned in the present case is a domestic premises.

Sentence

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

10.The burglary took place during work hours, when the occupants are less likely to be home, and in fact they were not. There is no evidence that the defendant had committed the offence with any accomplice. There is however substantial damage to the wooden door of the flat and the flat was ransacked.

11.Nevertheless, I find no reason to depart from the customary 3 year starting point and I do so adopt.

12.I find the fact that this is the defendant’s fourth conviction on a charge of burglary an aggravating factor, even though the last burglary was some 4 years ago. For this aggravating factor, I will increase the sentence by 3 months, resulting in a sentence of 3 years and 3 months’ imprisonment.

13.I find that there are no mitigating factors to cause me to further adjust this sentence.

14.Since the defendant is convicted after trial, there is to be no sentencing discount and the defendant is sentenced to 3 years and 3 months’ imprisonment on the charge.