HKSAR v. WONG NAM KEUNG

DCCC689/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 689 OF 2009

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Reasons for Sentence

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1.  The Defendant pleads guilty to one count of attempted burglary and another count of failing to surrender to custody without reasonable cause.

2.  At 2.24 pm on 29 May 2009, 2 police officers were conducting a vertical patrol inside the building situated at No. 56 Bonham Road, Mid-levels, Hong Kong.

3.  When one of the police officers reached the staircase between the 7th and 8th floors of the building, he saw through the glass of the smoke door the Defendant standing in front of Flat B on the 7th floor with his face facing the iron grille of the flat.  The Defendant was seen using his right hand to move a 2-feet long metal stick in the gap between the main door and the iron grille of the flat.  The police officer noticed that the Defendant’s right hand was covered with something like a piece of dark cloth. When that police officer walked close to the smoke door, the Defendant turned around and walked towards the lift lobby, leaving the said metal stick on the ground near the flat. 

4.  At the same time, the other police officer reached the lift lobby at the other end of the corridor on the same floor.  He then intercepted the Defendant at the lift lobby.  The police officer saw that each of the Defendant’s hands was wrapped with a sock. 

5.  The police officer then made enquiries with the Defendant.  Upon being questioned why he would appear at the scene and what he was doing with the metal stick, the Defendant made no reply. 

6.  The Defendant was then arrested for the offence of attempted burglary.  Under caution, the Defendant denied the offence.

7.  The flat in issue was a domestic premises.  The owner of the flat was not at home at the time of the offence and he suffered no loss in the incident.  

8.  At the material time, the Defendant attempted to enter as a trespasser to the flat with intent to steal inside.

9.  On 17 July 2009, the Defendant was brought to the District Court for plea in respect of the attempted burglary offence and bail was granted to the Defendant until 6 November 2009. However on 6 November 2009, the Defendant failed to surrender to the custody as the court appointed.

10.  On 3 March 2011, the Defendant surrendered himself to Tsing Yi Police Station.  By that time, he did not give any reason for his failure to surrender to custody on 6 November 2009.  

11.  The Defendant is aged 52.  He has 7 previous convictions involving 11 charges.  One of the charges was similar to the present one, namely burglary, and he was sentenced to 2 years’ imprisonment in 2001. 

12.  According to Mr Lok, solicitor for the Defendant, the Defendant worked as driver prior to the present offence.  He injured himself while playing football in 2007.  The Defendant’s daughter also died in June 2008.            

13.  Prior to that, he lost 3 fingers of his left hand during an industrial accident.  Although he can work as a driver, the remaining 2 fingers cause him some difficulty in taking other kinds of employment.  

14.  As to the reason why he failed to surrender to custody, Mr Lok submits that the Defendant needed to take care of his mother who suffered from diabetes and was living alone.  He was remorseful for the offence that he had committed, and he surrendered to the police in 2011 when the health condition of his mother stabilised. 

15.  In respect of the attempted burglary offence, Mr Lok submits that the Defendant had all along cooperated with the police.  The victim or the occupier of the flat was not alarmed by the offence and he suffered no loss in the incident.  Also, the Defendant pleads guilty to the offences and so he urges the court to treat the Defendant as leniently as possible. 

16.  According to established guidelines, the normal starting point for the offence of burglary in domestic premises is one of 3 years’ imprisonment.  It was only lucky that the occupant of the premises was not present when the Defendant committed the offence.  But by committing the offence in domestic premises, there was still a risk that whoever stayed in the premises would be alarmed by the Defendant’s offence.  In such case, I see no reason to depart from the normal starting point of 3 years’ imprisonment in respect of such kind of offence.

17.  Giving the Defendant one-third discount for his plea of guilty, the sentence in respect of Charge 1 is reduced to one of 2 years’ imprisonment. 

18.  In respect of Charge 2, that is the offence of failing to surrender to custody, I adopt a starting point of 6 months’ imprisonment.  Giving the Defendant one-third discount for his plea of guilty, the sentence is reduced to 4 months’ imprisonment. 

19.  I have considered all the mitigating factors submitted by Mr Lok, but I do not find that those factors would justify any further reduction in the sentence.

20.  The sentence in Charge 2 will run consecutive to the sentence in Charge 1, and so the total sentence is 2 years and 4 months’ imprisonment.