HKSAR v. Wong Chi Kong

DCCC 289/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 289 OF 2015

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REASONS FOR SENTENCE

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1.Defendant, you came before me this morning and pleaded guilty to one charge of burglary and another charge of attempted burglary (charge 1 & charge 2). The burgled premises in relation to both charges are village houses situated in Yuen Long.

2.In the period of about 10 months, between 26 March 2014 and 26 January 2015, on the first occasion, you have entered into a village house in Wong Uk Tsuen, Yuen Long, and stole one iPhone, one camera, two rings, one necklace with pendent, cash of RMB500 and cash of about HK$1,000.  On the second occasion, you attempted to burgle into another premises situated in Pok Wai, Yuen Long.

The facts

3.According to the Summary of Facts you have admitted, the residents of the first premises in relation to Charge 1 left at about 6:15 pm on 26 March 2014, and the main door was properly locked before they left.  However when they returned later at about 10:50 pm in the same night, they found that the kitchen window on the ground floor was prised open.  There were signs of ransacking inside the premises.  A door of the room was prised but was still locked and a cigarette butt was left on the staircase of the house. 

4.The total value of the properties stolen from this premises was about HK$18,625.

5.DNA examination on the cigarette butt revealed that the DNA lifted from it belonged to you.

6.In Charge 2, the resident of the premises heard some noise at about 9 pm on 26 January 2015.  When the resident opened the main door of the premises, he saw somebody lying in the garden area.  He later went to the garden with another person and saw you lying on the ground.  You told them that you were there to burgle the premises but you had fallen from the 2nd floor and you were painful.  The matter was reported to the police. 

7.It is clear upon inquiries that you climbed the 1st floor of the premises and tried to prise open the window there but you had fallen down accidentally.

8.At the time of arrest, you were found in possession of a pair of gloves.  A screwdriver was found in the garden area which you also confirmed to the police that you had used it to prise open the window of the premises.

9.Nothing was stolen from this premises.  However, the electric wire tube of the premises was damaged and a window of the 2nd floor was also prised open.

10.The police officers conducted a cautioned interview with you in relation to both incidents under which you have admitted that you have attempted to burgle the premises on 26 January 2015.  You also confirmed that you had visited these premises a few days prior to the arrest to check the environment and to confirm that it was suitable for burglary.

11.In relation to the premises of the Charge 1, you also admitted to the police that you had burgled the premises when you saw that the light of the premises was off at the time and you successfully entered the premises through the kitchen window on the ground floor and then searched the rooms on the upper floor and stole the property there. 

12.You had smoked a cigarette inside the house and left the cigarette butt inside.  As to the stolen properties, you said that you had already sold them at about RMB3,000 in the mainland.

Criminal record and antecedent of the defendant

13.In the past, you have appeared in the court 10 times in relation to 16 criminal records.  In particular, you have 13 similar burglary records.  In relation to the last burglary record involving six burglary charges, you were sentenced to a total of 48 months’ imprisonment by the District Court.

14.You are 53 years old and you are married.  You told the police that you are living with your wife in China.  You were educated up to Form 3 of secondary education in Hong Kong.  You told the police that you are a part-time transportation worker and was a delivery worker at the time of the arrest.

Mitigations

15.In mitigation, your lawyer, Mr Lo, had properly and correctly pointed out to the court that the usual starting point for domestic burglary for a first offender of full age is 3 years.  The same starting point also applies to attempted burglary.

16.Mr Lo had also acknowledged that in your case, there existed a number of aggravating features.  It is an undeniable fact that you are a repeated offender with many previous similar burglary records.  In the course of the burglary, you have also equipped yourself with a screwdriver and a pair of gloves, and clearly you are not an opportunist.  Mr Lo, however, submitted to the court that you had no intention to break into any occupied premises.  You actually decided to burgle into the premises of Charge 1 only because the light was off at that time. 

17.In relation to the second premises, Mr Lo prayed in aid of the fact that you have fallen onto the ground in the course of this attempted burglary and you have already suffered injuries.  According to the medical report prepared by the Department of Orthopaedics and Traumatology of Tuen Mun Hospital, you were diagnosed of suffering from left hip and left wrist injury and you were later transferred to the Queen Elizabeth Hospital for further care.

18.Mr Lo lastly urged the court to consider the principle of totality and to impose an overall sentence which is as lenient as possible.

Sentencing considerations

19.Burglary is a serious offence.  You should know better because in the past, you have been convicted no less than 13 times for the offence of burglary.  As I have said, in 2005, in relation to six burglaries altogether, the District Court had already sentenced you to a total of 48 months’ imprisonment.  No reason was provided as to why you resorted to commit burglary again even though it was stated that you were in employment as a delivery worker but the court can never accept any economic reason for committing crimes. 

20.The tariff for the proper starting point of a domestic burglary is 3 years.  In this case, you are a person of previous criminal records and it is not a light criminal record.  In Chan Pui Chi[1] the Court of Appeal has imposed a duty on the court to consider passing a sentence of sufficient deterrent effect on a defendant with criminal records in the past.

21.In your case, I consider that in each charge, I shall increase the sentence by 6 months in order to deter you from committing the offence again and also to protect the public at large. 

22.In Charge 1, there were also valuable properties being stolen from the house.  You had sold the valuable properties almost immediately after the offence, and you have no means to compensate the owner of the properties.  Most importantly, you also admitted to the police that you had used the screwdrivers and actually broke into the premises.  You are a professional and not an opportunist and, what is more, you had also actually stolen and sold the properties there.

23.All in all, I consider that there were these additional aggravating features which warrant an additional 3 months’ increase in relation to Charge 1.

24.I would therefore adopt a total starting point of 45 months in Charge 1 (36 + 6 + 3).  In relation to Charge 2, I would just adopt a starting point of 42 months (36 + 6).  Defendant, you pleaded guilty which is the only effective mitigation.  You are entitled to the one-third reduction from these starting points.  After reduction, in relation to Charge 1, you are sentenced to 30 months’ imprisonment and in relation to Charge 2, you are sentenced to 28 months’ imprisonment.

25.Obviously, the principle of totality requires me to further adjust the sentences.  After considering this principle, I order that 12 months of the sentence of the charge 2 to run consecutively with the sentence on Charge 1, and the remainder of the sentences shall run concurrently.

26.In relation to both charges, defendant, the court will sentence you to a total of 42 months’ imprisonment.