HKSAR v. CHOW KWONG FAI

DCCC 79/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 79 OF 2015

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Reasons for Sentence
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1.  The defendant pleaded guilty before me to two charges of burglary, the particulars of which are in the following paragraph.

2.  On 15 and 22 November 2014 respectively, the defendant, having entered as a trespasser two different addresses, correspondingly Premises 1 (No 15, Wo Tin, Mui Wo Rural Committee Road, Mui Wo, Lantau Island) and Premises 2 (1st Floor, No 94 Pak Ngan Heung, Mui Wo Rural Committee Road, Mui Wo, Lantau Island) and stole therein, in the case of Premises 1, one computer monitor and one portable game machine, and, in the case of Premises 2, one DVD player, one remote control, one torch and cash $50 Hong Kong currency.

A summary of the facts admitted by the defendant

3.  The resident of Premises 1 (PW1) left the premises secured at about 7.30 am on 15 November 2014.  At about 7.20 pm when he returned, he found the window of his bedroom prised open and there were signs of ransacking inside.  He found a computer monitor (E1) and a PlayStation portable game machine missing.  Case was reported.

4.  The resident of Premises 2 (PW2) left the premises secured at about 7.50 am on 22 November 2014.  At about 7.45 pm when he returned, he found the door of the premises prised open.  He found one DVD player (E2) with its remote control, one torch and coins of $50 missing from the premises.  Case was reported.

5.  As a result of inquiry, a search warrant was executed at the defendant’s residence in Pak Ngan Heung, Mui Wo Rural Committee Road, in his presence on 4 December 2014, whereupon E1 and E2 were recovered from the defendant’s bedroom. 

6.  The defendant was arrested and cautioned for the offence of burglary.

7.  Under caution, the defendant admitted that he stole E1 in a house in Wo Tin and E2 in a house in Pak Ngan Heung for his own use because he was unemployed and had no income.

8.  In a subsequent cautioned VIR, the defendant admitted that at about noon on 15 November 2014 he walked past Premises 1 and saw a computer monitor (E1) and a portable game machine therein.  He then prised open the window with a screwdriver and climbed into the premises.  He then took the two items.  He kept E1 for his own use and sold the portable game machine for $150 in Sham Shui Po and had spent the money already.

9.  The defendant also admitted that at about noon on 22 November 2014 he walked past Premises 2 and found that the main door was broken.  He then entered Premises 2 and took a DVD player (E2) with its remote control, a torch and coins of $50, out of greed.  He lost the remote control and the torch on his way back home.  He had spent the $50.  He kept E2 for his own use.

Defendant’s personal particulars

10.  Defendant is 33, single, and, before arrest, lived with his parents at Pak Ngan Heung, Mui Wo.  He had received up to Form 2 education in Hong Kong.  He had previously worked as a driver but was unemployed prior to arrest.

11.  He has one previous conviction of attempted robbery in 2009, for which he was sentenced to 28 months’ imprisonment.

Mitigation

12.  Miss Ada Chan, acting for the defendant, has the following plea in mitigation.

13.  The defendant had a job earning $8,000 a month, but lost it in 2012.  His parents are in their 50s and 60s.  His sisters have all married and lived apart. 

14.  Defendant pleaded guilty and has not wasted the court’s time.  He confessed after being arrested. 

15.  Total loss to the victims (discounting items recovered) were slight, amounting only to $2,550.

16.  He committed the offences because he had no money. 

17.  The second burglary was an opportunistic one, as the door was defective.  The defendant simply pushed it open.

18.  There is no aggravating feature in this case.

19.  Miss Chan referred to the Attorney-General v Lo Ching Fai, CAAR 12/1995, and asked this court not to impose an overall sentence in excess of 2 years 4 months for the two burglaries.

20.  Miss Chan referred to HKSAR v Cheung To Ming [2006] 2 HKLRD 259 and asked that a lower starting point be adopted for an opportunistic burglary.

21.  Miss Chan referred to Archbold Hong Kong 2013 edition, paragraph 22-87, and highlighted the fact that there are no aggravating factors in this case.

Sentence and reasons for sentence

22.  I have considered the authorities urged upon me by Miss Chan. 

23.  I have looked at photo album 1, especially photo 11, handed up by the prosecution at the court’s request. 

24.  Upon enquiry of the parties, I discovered that Premises 1 was about half an hour’s walking distance from the defendant’s residence and hence Premises 2.  I note the two burglaries were only a week apart. 

25.  The tariff sentence for domestic burglary is 3 years’ imprisonment after trial. 

26.  There ought to be a lower starting point for an opportunistic burglary.

27.  I agree that the second burglary may be said to be an opportunistic burglary, given that the door was broken/defective before the defendant set foot on it.

28.  For the first charge, I adopt a starting point of 3 years’ imprisonment. 

29.  The defendant pleaded guilty, which earned him a one-third discount.  There is no other mitigating circumstance.

30.  I sentence him to 2 years’ imprisonment.

31.  For the second charge, I adopt a starting point of 2½ years’ imprisonment. 

32.  The defendant pleaded guilty, which earned him a one-third discount.  There is no other mitigating circumstance.

33.  I sentence him to 20 months’ imprisonment.

34.  Given the proximity of the two offences in terms of space and time, and after taking into account the totality principle, I order that 6 months of the sentence for the second charge to run consecutively to that for the first charge.

35.  Defendant, please stand.

36.  Hence the aggregate sentence that the defendant has to serve is 2 years 6 months’ imprisonment.