HKSAR v. CHAN KWONG CHUN

DCCC1336/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1336 OF 2010

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Reasons for Sentence

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1.   The Defendant pleads guilty to one count of burglary and another count of attempted burglary.

2.   The present offences involve three shops in the Western District: the first one was at ground floor, 43 Des Voeux Road (“Shop No. 1) which was vacated at the material time; the second shop was at ground floor, No. 45 Des Voeux Road (“Shop No. 2”); and the third shop was at ground floor, no. 47 Des Voeux Road (“Shop No. 3”).  Both Shops Nos. 2 and 3 were locked at the material time. 

3.   Shop No. 1 was adjacent to Shop No. 2, while Shop No. 2 was adjacent to Shop no. 3.  They shared the same rear lane, and each shop had a backyard at the rear lane.  The walls around the each of the backyards were about 2 metres high.

4.   At about 11.05 pm on 14 September 2010, a team of police officers were conducting an anti-burglary operation in Western area, and they were observing the rear lane of Shops Nos. 1-3 from the observation post located at the rooftop of a nearby building.

5.   The police officer then saw a male in dark-coloured clothing climbing up the wall surrounding the backyard of Shop No. 1 to the rooftop of Shop No. 1.  At around 11.30 pm, the police officer saw the male turning on his torch and climbing from the rooftop of Shop No. 1 to the water tank located at the rooftop of Shop No. 2.  He observed that the torch of the male was turned on and off occasionally.  The police officer then laid ambush in the vicinity of the rear lane. 

6.   At around 1.40 am on 15 September 2010, the Defendant was seen climbing back to the rooftop of Shop No. 1.  The Defendant then climbed down onto the rear lane.  At this juncture, the police officer heard a loud, unknown sound and saw the Defendant dashing towards the opposite side of the rear lane and climbing up a ladder to another building located at No. 74-75 Connaught Road West.  One of the police officers then pointed his torch towards the Defendant and asked the Defendant to stop moving.  However, the Defendant managed to escape.

7.   At around 3.00 am on 15 September 2010, one of the police officers saw the Defendant holding a torch in his hand and walking out from the building at No. 76 Connaught Road West.  The police officer recognised the Defendant as the one who had climbed up the ladder earlier on.  The police officer intercepted the Defendant and then arrested the Defendant for the offence of attempted burglary.  Under caution, the Defendant remained silent. 

8.   Later on 15 September 2010, a staff of the Shop No. 2 returned to Shop No. 2.  He checked that there was no sign of ransacking inside Shop No. 2 and no property was missing.  However, he found that the top hinge of the rear metal door which led to the backyard of Shop No. 2 was damaged.  The offence in Shop No. 2 was the subject matter of Charge 1.

9.   At about 9.15 am also on the same day, a staff of Shop No. 3 returned to the shop.  She checked that there was no sign of ransacking inside Shop No. 3 and no property was missing.  However, part of the iron netting surrounding the top of the backyard of Shop No. 3 had been cut open.  The offence in Shop No. 3 was the subject matter of Charge 2.

10.   The police conducted a sweeping search at the building located at Nos. 74 to 75 Connaught Road West.  It was found that the said building was vacated.  Upon checking, the police officer found the platform at 5th Floor of Nos. 74-75 Connaught Road West could reach the rooftop of No. 76 Connaught Road West. 

11.   At around 9.20 am on 15 September 2010, a recycle bag containing a large number of breaking tools were found in a pump room located on the top of a vacated toilet at Ground Floor, Nos. 74-74 Connaught Road West.  Amongst them was a homemade mask.  Upon subsequent home search at Defendant’s home located in Yau Tong, the police found a pair of grey-coloured trousers with part of the right trousers leg being cut.  The cut mark and the cloth of the trousers appeared to match that of the homemade mask.

12.   The Defendant denied the commission of the offences in the subsequent video-recorded interviews.  At all material times the Defendant burgled Shop No. 2 and attempted to burgle Shop No. 3, a fact which was admitted by the Defendant.

13.   The Defendant is aged 57.  He has 11 previous convictions involving 16 charges.  Twelve of the charges were related to burglary or attempted burglary, and two charges were related to going equipped for stealing.  The last conviction was in 2008, and he was released from prison in November 2009.

14.   The Defendant was born in the Mainland, and he came to Hong Kong in 1979.  He is married, with a son and daughter.  He did not have stable employment prior to the arrest.  According to the Defendant, his father was sick at the time of the commission of the offences.  The father was in the Mainland and the family was in need of money, and that was why the Defendant committed the present offences. 

15.   Burglary is always a serious offence.  According to the established sentencing guideline, the starting point for burglary in a non-domestic premises is 2½ years' imprisonment.  However, the previous conviction record shows that the Defendant was a repeated offender.  It seems that the sentence cannot serve as a deterrent so that the Defendant would not commit further offences.  In such circumstances, the previous conviction of the Defendant is certainly an aggregating factor that the court should take into account in sentencing the Defendant.

16.   I therefore increase the starting point by a further six months, and so the starting point would be 3 years' imprisonment.  Giving the Defendant one-third discount for his plea of guilty, the sentence for Charge 1 is reduced to 2 years' imprisonment.  For the offence in Charge 2, I impose the same sentence of 2 years' imprisonment, to run concurrently with the sentence in Charge 1, making a total of 2 years' imprisonment.