HKSAR v. SIU KIN WAI

DCCC 397/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 397 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one offence of burglary.

2.  He has agreed the facts.  The facts are as follows.

3.  The location of the offence is the 1st floor of a residential premises in Sham Shui Po, partitioned into 11 rooms, and the victim (PW1) had rented one of the rooms known as “A3”.  It is also evidenced in the facts that the defendant also rented another room in that premises; totally, as I said, 11 rooms in the wider flat.

4.  PW1 was sent to hospital for treatment on 21 March 2015.  On the evening of 28 March 2015, another neighbour who lived in another room, B5, saw that the room A4 had been entered by the defendant.  A4 was vacant and unlocked, but was adjacent to A3.  The defendant had evidently entered A4 and then got into A3, because shortly after the light to A3 was seen to be on.  The door of A4 was locked and the police were called. 

5.  When the police were called, they found the defendant in Room A3.  When he was searched, a key with a red tag and a multipurpose knife were found on the defendant.  The defendant admitted that both of these items were stolen from the room at A3 and he said he climbed into A3 to steal out of greediness.

6.  Later, he made a video recorded interview and he said he climbed into Room A3 from the window of A4, then he had stolen the key and the multipurpose knife out of greediness, and he kept the key so that he would return to A3 later.  He said he went there to steal because he knew the occupant had been admitted to hospital a few days earlier and it was unoccupied.

7.  The defendant has admitted those facts.

8.  His antecedent is also admitted.  He is aged 36.  He has previous convictions:  two occasions of conviction in total.  On 2 October 2013 he was convicted of burglary and sentenced to 6 months’ imprisonment, suspended for 24 months.  On 28 January he was convicted of going equipped for stealing and also for breach of the suspended sentence which had been imposed earlier, and appears he then went to prison for 12 months as a result of that.

9.  The defendant’s mitigation is that he has pleaded guilty and indicated a plea from a fairly early time.  He has admitted the facts and also his previous record.  It is said that not much was stolen, that he knew the victim would be in hospital, he is remorseful.

10.  Now, as far as the approach to sentence is concerned, it is common ground that there is a guideline sentence for burglary of residential premises and a person of clear record can expect a starting point for sentence of 3 years’ imprisonment for burglary of residential premises.

11.  There are, of course, burglaries where that particular starting point is not necessarily the appropriate one, even where they are in a residential building.  Some burglaries that have been described as opportunistic have resulted in a lower starting point for sentence.

12.  I refer to the case of HKSAR v Hai Chung Po [2013] HKCA 435.  At paragraph 8 of that judgment, reference is made to two other cases.  These are as follows.  It says: 

“In HKSAR v Law Tin Yam and HKSAR v Kwok Wing Kam, this court quashed sentences of 16 months and 12 months’ imprisonment respectively for single charges of burglary and, having taken a starting point for sentence of 15 months’ imprisonment, imposed sentences of 10 months’ imprisonment on the respective appellants. In the former case, the appellant had broken into the cubicle of a neighbour, in his absence out of Hong Kong, and stolen a packet of cigarettes. In the latter case, the appellant, who was unable to sleep, had used a plastic card to force the lock on the door to a neighbour’s premises, entered and stolen a packet of lemon tea from the refrigerator.”

13.  Those cases would appear to be more similar to this case than the traditional residential burglary.  The instant case involves a subdivided premises.  The defendant had been a resident of one of these rooms, the victim also being a resident of the room and the victim being absent due to a period in hospital.

14.  I consider this is a case where I can depart from the normal guideline sentence.  In this case, there are elements of an opportunistic theft type burglary. 

15.  There are, however, other aggravating factors in respect of the offence.  There is, of course, the taking of the key for the possibility of further entry into the premises on a later occasion.

16.  I consider, when these factors are added together, the appropriate starting point for sentence should be one of 21 months’ imprisonment. 

17.  There is also an aggravating factor that this is not the defendant’s first conviction for burglary.  He was convicted in 2013 of a similar offence.

18.  I consider that that aggravating factor should increase the starting point by a further 3 months to a starting point of 24 months’ imprisonment.

19.  The defendant is entitled to his full discount of one-third for his plea of guilty and that will lead to a final sentence of 16 months’ imprisonment.

20.  So the sentence is 16 months’ imprisonment.