HKSAR v. CHENG HIU MAN

DCCC457 & 601/2010(CONS)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 457 & 601 OF 2010 (CONSOLIDATED)

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Reasons for Sentence

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1.  Defendant has pleaded guilty to two counts of burglary, contrary to sections 11(1)(a) and (4) of the Theft Ordinance, Cap. 210, and convicted of the 3rd charge of giving false information to a pawnbroker, contrary to section 18 of the Pawnbrokers Ordinance, Cap. 166.

2.  The facts of this case are very straightforward. The first burglary was committed on 21 February this year and the defendant had entered the premises, a domestic premise, by breaking a toilet window. However, PW1 was at home although it was 11 am, and saw the defendant climb through that window. She scared the defendant away and she suffered no loss. Fingerprints and palm marks were found, one of the marks matched the defendant’s left ring finger. There was no violence involved in this offence.

3.  The second burglary occurred on 6 March 2010. PW2 locked up his home at 8.30 in the morning to return at 5.30 to find the premises ransacked. The burglary took place during the day. HK$7,000 and RMB600 were stolen. One of the occupants also had his watch stolen, it was valued at $15,200.

4.  On the same day, the defendant pawned this watch and received $6,000. The defendant gave a false address which is the particulars of charge 3.

5.  The defendant was then arrested one week later on 13 March 2010. He admitted charges 2 and 3. He also told the police that he had spent all the money that he stole or received from the pawnshop.

6.  I have heard mitigation put forward on behalf of the defendant. Defendant is 29 years old and is not a man of clear record. He has four previous convictions of which one is a burglary conviction in 2007. The other convictions include two theft convictions and one for possession of dangerous drugs. In the antecedent statement it seems the defendant has told the police that he is a drug addict. Defendant’s best mitigation today is his plea of guilty.

7.  I have heard that he committed these offences due to financial pressures. Defendant has a wife to look after living in China. She needed some money urgently, defendant felt he had to resort to burglary to find the money. I have also been told that drugs play a factor and at the same time he was unemployed. I am sure drugs is the reason the defendant had no job and was therefore in financial difficulty.

8.  There are numerous authorities that set out a guideline for domestic burglary and in the absence of aggravating or mitigating factors, a 3 year starting point is appropriate. Having looked at the facts of this case, I see no aggravating factors nor have I heard any mitigating factors that will give me reason to deviate from this starting point. To come to this decision I have taken into account obviously the defendant’s plea, his mitigation, the facts of the case and the loss suffered by victims.

9.  After considering all these factors, for charges 1 and 2 I will take a starting point of 3 years. Defendant will be entitled to a discount of one year for his plea.

10.  For charge 3, I take a starting point of 9 months’ imprisonment. I will discount the starting point by 3 months for the defendant’s plea.

11.  Defendant, please stand up. For charge 1, you will be sentenced to 2 years’ imprisonment; charge 2, you will also be sentenced to 2 years’ imprisonment. Charge 3, you are sentenced to 6 months’ imprisonment. For charge 2, I have also taken into account the totality principle. For charge 2, I will take 8 months of the 2 years and order the 8 months to be served consecutively to charge 1 and the balance concurrently. For charge 3, the 6 months, I will order that 2 months of the six will be served consecutively to charges 1 and 2 and the balance concurrently.

12.  That will result in a total sentence of 2 years and 10 months’ imprisonment.