HKSAR v. CHAN WING CHEONG

DCCC1161/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1161 OF 2008

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Reasons for Sentence

1.  The defendant stands charged before me today with respect to one count of burglary.  They are of domestic premises.  The facts are, shortly, that the defendant who is a security guard in the building that the flat is contained in, entered the premises of one of the flats on 21 September 2008.  He there stole RMB6,000.  The matter was reported to the management security office by the occupant, PW1, at the time. 

2.  Subsequently, on 1 October 2008 about 9.20 am in the morning, PW1 who was alone in the flat, heard a noise and saw the defendant in her living room.  She of course recognised him as being a security guard for the building.  He said in answer to her enquiry, “Ms Hu, your rear door has not been locked.  Sorry, I came in”, and left.  The matter was subsequently reported to the police. 

3.  The police arrived and the defendant, under arrest and caution, made full admissions that he stole the money on 21 September.  He said subsequently that he had entered the flat again on 1 October in order to return $1,200 of the RMB6,000 he had taken.  I am informed that the defendant has in fact paid this $1,200.  As I say, the defendant has admitted those facts and I have convicted him as charged with respect to the matter.  The defendant is 44 years old and has a clear record. 

4.  Very extensive mitigation has followed, where it was acknowledged that this is a serious matter and is aggravated by the fact that it involves an element of breach of trust, the defendant being a security guard in the same building that the burgled flat was in.  I am told the defendant is married and his wife and his mother are in court.  He is the father of 6-year old twins.  He had met his wife in mainland China when he was working there, and then she had come to Hong Kong.  When he returned, he found this job eventually as a security guard and had been doing it for about 3 years. 

5.  I am told that his wife had problems in adjusting to the way of life in Hong Kong, and as a consequence, had some medical problems.  A social worker helps the family.  Various letters were produced to me, all of which bar one have English translations.  They are from the defendant himself, from his wife which includes the fact that she is still receiving treatment for her medical problem.  There is also one from a district counsellor and there are three letters from his co-workers, including PW2, who the matter was reported to at his place of employment. 

6.  As well, there is a letter from a Pastor Yuen, the contents of which have been fully outlined to me and I accept.  He also is present in court today with a Social Welfare worker.  Also, I am told that PW1 - that is the victim in respect of the matter - had said in her statement that she did not want the matter to go any further.  The defendant was a humble man. 

7.  I am told that he committed this offence out of greed because of financial hardship.  He earned a salary of about $7,000 to $8,000 per month.  His wife originally had a job but because of her problems does not work any more, and his twin sons, are supported by him.  He is the sole breadwinner.  There are the normal school expenses for his twins, who are now in primary school. 

8.  I am also told that his brother has had a debt that the defendant was paying $4,000 a month on.  As well, I am furnished with a case which I am familiar with, of Chow Chak-man (1998) CACC447.  Because the defendant has a clear record, I normally do adjourn these matters for two to three weeks to get a background report.  However, I am of the view that that is unnecessary here because of the fact that it would elicit very little extra than the full and complete mitigation that has been furnished to me.  No stone has been left unturned in that regard.  Whatever can be said has been said on behalf of the defendant. 

9.  The authorities do suggest that for burglary of domestic premises, the starting point is 3 years.  Where there are elements of aggravation, it can be higher.  Here, as indicated, there is the element of aggravation, being that the defendant was a security guard in the very building that the flat was in.  That could be regarded as an element of aggravation to increase the starting point. 

10.  However, the defendant pleaded guilty straight away, has a clear record, and I am not going to increase the starting point in all the circumstances.  The matter is, of course, too serious a matter to consider any other option bar imprisonment.  Therefore, I take into account all the circumstances here and take a starting point of 3 years' imprisonment.  With respect to that, he will get the full discount with respect to the plea of guilty. 

11.  Accordingly, he will be convicted and sentenced to 2 years' imprisonment.  I will have the Social Welfare Department to see him in the cells in respect of assistance to be afforded to his wife and twins during his incarceration.