HKSAR v. SING KWOK KIN (also known as SHING KWOK KIN)

DCCC 703/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 703 OF 2015

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REASONS FOR SENTENCE

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1.  The defendant was charged with two counts of “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210 (first and third charges) and another count of “Burglary” contrary to section 11(1)(a) and (4) of the same Ordinance (second charge). He pleaded guilty to the first and third charges and pleaded not guilty to the second charge. Upon the prosecution’s application, the second charge was left on court file and not to be proceeded with without court’s leave.

he first charge

2.  Block C of Lederle Garden at Hung Hom is a 19-storey residential building with scaffoldings erected since 8 April 2015.  Madam Chan Chung Ying was the occupant of the unit on the top floor of the building.    

3.  Between 9:15 am and 4:00 pm on 19 April 2015, the defendant burgled Madam Chan’s unit.  A window in the living room was prized open.  The defendant stole a number of items as particularized in the first charge, including one wrist chain, 5 gold chains and 2 cameras.  Total value of the stolen properties is around $30,000.

he third charge

4.  Block B of Hay Wah Building at Wan Chai is a 20-storey residential building.  Scaffoldings were erected outside the building at the material time. 

5.  On 18 April 2015 at about 10:00 am, Mr Lo Chun Tung and his wife of Flat B7 on 14^th Floor of the building left their flat secured. 

6.  On 20 April 2015 at about 1:00 pm, police officers were conducting anit-burglary operation in Block B of Hay Wah Building.  They saw the defendant carrying a rucksack coming out from the building. When the defendant walked out from the building, he looked nervous.  The defendant was then intercepted for inquiry. 

7.  Upon search, a screwdriver, a pair of white labour gloves, some watches, cash, mobile phones, wallets, credit cards, jewellery, red packets and other items were found in the defendant’s rucksack.  A car key and a silver bracelet were found in his trousers’ pocket.  Under caution, the defendant admitted having burgled a unit on around the 10^th Floor.

8.  In his cautioned interview, the defendant admitted having just burgled a unit in Hay Wah Building. Having ransacked the unit, the defendant took a T-shirt from the premises and left with the valuables.  For the bracelet in his trousers’ pocket, he got it when he committed another burglary in Hung Hom the day before (i.e. the first charge).

9.  Inspection of the flat at B7, 14^th Floor revealed that a window in the cloakroom was left open while the flat was ransacked.  It was later confirmed that the items particularized in the third charge, including one camera, one iPad, red packets containing a total of $15,694, some foreign currencies and 4 watches were missing from the flat.  The total value of these items is around $200,000.

10.  Upon search, two sets of camera and lenses (stolen properties of the first charge), a glove, a screwdriver and other items were found in the defendant’s private car.

11.  The items recovered from the defendant were shown to the occupants of the two burgled flats.  They confirmed those items particularized in the first and third charges were their belongings. 

12.  In the video-recorded interviews, the defendant admitted that he bought a pack of kitchen tissue paper, posed as a resident and entered Block A of Hay Wah Building.  He climbed over from Block A to Block B on the rooftop and looked for opportunities to burgle.  He climbed down to 14-15/F and entered one of the flats by prizing open a window in the living room.  After he had ransacked the flat and put all stolen properties into his rucksack, he put on a T-shirt he had taken from the burgled premises and left the building.  He committed both the first charge and third charge alone.  He sold some of the gold necklaces stolen from the subject premises of the first charge and kept one of them in his trousers’ pocket.

Mitigation

13.  The defendant is aged 43. He recently got married in May 2015.  Prior to the arrest, he had been working in a garage as a vehicle mechanic, earning about $15,000 per month.  He has 24 previous convictions, 4 of which relate to burglary and 11 of them relate to dangerous drugs.  It was submitted that the defendant committed those offences not relating to drugs due to his drug addiction.  Further, the burglary offences for which he had been convicted of in 2005 and 2006 were committed as a series of offences but they were prosecuted at different times and hence he was dealt with on separate occasions.

14.  It was submitted that since 2009, the defendant had not committed any drugs related offence as he had successfully quitted the drug habit.  Given he has married recently, with the family support and support from his wife, he would turn over a new leaf after he has served the sentence for the present offences.

15.  It was further submitted that there was no aggravating features in the commission of the offences as he committed the offences alone and the occupants were not in the premises at the time of the burglary.  Most of the stolen properties of the first charge and all of the stolen properties of the third charge were recovered. The defendant had offered to compensate the victims for the loss.  Two banker’s cashier orders in the sum of $15,000 and $5,000 respectively were shown to the court during mitigation.  The former cashier order was intended to compensate the victim for the first charge for the loss of the gold chains which had been sold by the defendant and also for the costs for damage to the window which was prized open.  The other cashier order was to compensate the victim for the third charge for the damage done to the window which was prized open.    

16.  It was also submitted that the defendant volunteered his confession in relation to the commission of the first charge when he was arrested for the third charge.  This made the police investigation much easier.

17.  Finally, it was submitted that all the above indicated the defendant was truly remorseful and determined to turn over a new leaf.  He asked for a lenient sentence.

Sentence

18.  There is a well settled sentencing guideline for burglary of domestic premises.  According to the guideline, the starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.

19.  As far as the defendant’s previous conviction records are concerned, whilst he had 4 previous convictions for burglary, those offences were committed within a short time but were prosecuted separately.  Further, those convictions are in 2005 and 2006.  Since then, the defendant has not committed any burglary.  In the circumstances, I will not enhance the starting point solely because of the defendant’s previous conviction records.

20.  Regarding the restitution, it is well settled that this can amount to mitigation, particularly when coupled with a plea of guilty (see HKSAR v Leung Shuk Man [2002] 3 HKC 424 and HKSAR v Cheung Suet Ting [2010] 6 HKC 249).  As the defendant has already paid the banker’s cashier orders to court as compensation for the victims of the two charges, he is entitled to a discount of 3 months from his sentence for each of the two charges. 

21.  Concerning the defendant’s voluntary confession to the police, I accept that the police may have difficulties in discovering the defendant to be the culprit of the first charge if the defendant did not admit this offence at the very first opportunity.  Coupled with his guilty plea, this shows genuine remorse.  I have reminded myself the relevant sentencing principle that in such circumstances, it is in the public interest for the court to give the defendant an additional discount as an encouragement (see HKSAR v Hui Chi Tong, CACC 414/2007 and HKSAR v Choi Ka Kin Seraphim, CACC 377/2012).  I am prepared to reduce his sentence for the first charge by 3 months for this mitigating factor. 

22.  For the two offences in the first and third charges, I accept the defence submissions that there was no aggravating feature in the commission of the offences.  As the burgled flat is a residential premises, the appropriate starting point for each charge is 36 months’ imprisonment. Since the defendant pleaded guilty to the charge, he is entitled to the usual 1/3 discount on his guilty plea.  Therefore, the sentence is reduced to 24 months’ imprisonment. 

23.  For the first charge, the 24 months’ sentence is further reduced by 3 months for the restitution and another 3 months for the voluntary confession.  Therefore, the sentence for the first charge is 18 months’ imprisonment.

24.  For the third charge, the 24 months’ sentence is further reduced by 3 months for the restitution. Therefore, the sentence for the third charge is 21 months’ imprisonment.

25.  The two burglaries committed by the defendant are entirely separate and distinct offences.  In theory, their sentences should run consecutively.  Having taken into consideration the totality principle, I am satisfied that a total sentence of 30 months is sufficient to reflect the criminality of the defendant’s conduct.  I therefore order that 9 months of the sentence for the first charge to be served consecutive to the sentence for the third charge, making a total sentence of 30 months’ imprisonment.  I hereby sentence the defendant to 30 months’ imprisonment.

26.  For the compensation paid into court by the defendant, $15,000 will be compensation to the victim of the first charge while $5,000 will be compensation to the victim of the third charge.