HKSAR v. SIU CHI PONG

DCCC 804/2019

[2020] HKDC 447

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 804 OF 2019

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REASONS FOR SENTENCE

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Charge

1.  D2 pleaded guilty to a count of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

Summary of facts

2.  At the material times, Ms Bagni Rosita-Lizardo was occupying Flat B, 1^st Floor No 18 Nam Kok Road, Kowloon City and her neighbour Mr Ho was renting the adjacent Flat B1 located on the same floor for storage purpose.

3.  At around 12:30 pm on 28 April 2019, Ms Bagni left Flat B with wooden door locked.  At around 3:15 pm of the same day, Mr Ho returned to his flat and noticed a wooden door (later known to be the door of Flat B) was placed at the staircase of the building.  He also noticed that the metal gate of Flat B was left ajar.

4.  As his premises was suddenly power off, Mr Ho walked over to Flat B where the electricity meter was located.  When he opened the metal gate of Flat B, D1 and D2 suddenly walked out from the kitchen to the entrance of the premises.   D1 said that he was there to conduct repair works. Mr Ho found it suspicious and reported the case to the police.

5.  Later at around 3:35 pm on the same day, Ms Bagni returned to the premises and found the two defendants standing outside her flat. She did not know them and also found that the wooden door of the premises had gone missing.  She then made enquiries with the two defendants of their presence. D2 replied that they were finding a place to rent.  D2 subsequently went inside the premises again and took out a white plastic bag containing a pair of sneakers and told Ms Bagni that someone had removed the wooden door before entering the premises and attempted to take away the plastic bag.  D2 said it was him who stopped that person from stealing it.

6.  Before the two defendants leaving the building, Ms Bagni managed to take photos of them.  Mr Ho was also able to identify the two defendants from the photos upon police arrival.

7.  The two defendants were later intercepted near Nam Kok Road and arrested for attempted burglary.  Under caution, D2 stated that he was accompanying his friend to look for a flat.  In a subsequent video recorded interview conducted the next day, D2 made a similar mixed caution statement to the police.

8.  Upon examination, D2’s right thumbprint was found on the inner side of the wooden door right below the security chain.

9.  Upon checking, Ms Bagni found that:

(1) a nylon bag originally placed inside the room of Flat B has been moved to the living room near the entrance;

(2) the white plastic bag containing a pair of sneakers which was originally placed inside the nylon bag had now been placed on the floor near the entrance; and

(3) all the bags inside the premises had been unzipped.

Mitigation

10.  D2 is 34 years old.  He is single and lived with his parents before he was arrested.  He was educated up to form two and had been unemployed.  He had altogether seven previous criminal convictions all concerning offences relating to dishonesty, one of which was burglary convicted in 2007.

11.  Counsel for D2 mitigated for him that D2 was remorseful and he committed the offence out of greediness.  It was also mitigated on his behalf that D2 found no one present in the premises at the material time and therefore attempted to steal therein.   D2 said that the door was not removed by them but by someone else before they entered into the premises.  D2 did not have any financial gain out of the present offence.  Counsel for D2 asked the Court not to enhance his sentence due to his previous similar convictions.

Consideration of sentence

12.  In respect of the offence of burglary, there is clear sentencing guidelines set out by the Court of Appeal[1].  Unless there are other aggravating or mitigating factors, the starting point for a domestic burglary should be a term of 3 years’ imprisonment.

13.  I do not agree with Counsel for D2 that he was an opportunist because on the facts, there was close proximity of time and location between the two defendants and the place where the door was found.  The wooden door of Flat B was obviously removed by the two defendants before entering the premises.  Above all, D2’s right thumbprint was found on the inner side of the door right below the security chain.

14.  I also note that D2 has a number of previous convictions of dishonesty related offences, one of which was burglary convicted in 2007.

15.  Having said that, I do not consider the facts of the case warranted a starting point of more than 3 years’ imprisonment.  Given all the circumstances, I take a starting point of 3 years’ imprisonment.   Given the timely guilty plea, the sentence is reduced to 2 years’ imprisonment.