HKSAR v. CHUM CHI YIN

DCCC662 & 712/2011(CONS)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 662 & 712 OF 2011 (CONS)

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Reasons for Sentence

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1.  Defendant, you have been convicted upon your guilty pleas of seven charges of burglary, Charges 1, 2, 3, 5, 6, 9 and 10, and four charges of attempted burglary, Charges 4, 7, 8 and 11.

2.  In sentencing, I take into account the whole circumstances of the case including its nature and facts, your personal background and mitigation put forward on your behalf.

3.  The facts of the case may be summarized as follows.  All the incidents involve burglary or attempted burglary at shops.

4.  In the case of Charge 1, the main door of the shop was prised open and the shop was ransacked.  Properties of a total value of about $14,000 including two notebook computers and cash of $350 were stolen.

5.  In the case of Charge 2, the main gate of the shop was prised open and nine computers worth about $22,000 were stolen.

6.  In the case of Charge 3, the glass door of the shop was prised open and the shop was ransacked.  Cash of $5,700 as well as a memory stick and two earphones valued about $6,000 were stolen.

7.  In the case of Charge 4, the glass door of a baby care shop was prised open and you were seen wandering outside the shop. 

8.  In the case of Charge 5, the main door of the shop was prised open.  Some computer products and cash were stolen.  The value was about $8,000.

9.  In the case of Charge 6, the glass door of the shop was left ajar.  Cash as well as goods such as card readers, SD cards and a game player was stolen.  The total value was about $2,400.

10.  In the case of Charge 7, the main door of a beauty parlour was prised open and you were seen wandering outside the shop.

11.  In the case of Charge 8, the main door of a fashion shop was prised open and you were seen wondering outside the shop.

12.  In the case of Charge 9, the iron chain and padlock used to secure the door of the hairdresser shop were missing, and cash of $1,800 was stolen. 

13.  In the case of Charge 10, the main door of a fashion shop was prised open and a camera, a CCTV recorder and some cash were stolen.  The total value of the stolen property was about $7,500.

14.  In the case of Charge 11, you were seen acting furtively at the shopping arcade.  A security guard made enquiry of you and recorded your personal particulars.  When the guard said he was to call the police, you fled.  CCTV recording revealed that you had tampered with the front gate of a hairdresser shop with a hard object. 

15.  On the following day you were stopped by police officers and arrested.  Some of the stolen properties of Charge 5 and Charge 6 were found on you. 

16.  Later, under caution, you made admission in relation to all the charges.

17.  During a house search at your home, some stolen properties in relation to Charge 2, Charge 3 and Charge 6 were found. 

18.  I was told that you were 31 years of age.  You were the only son of the family.  You were married but have lost contact with your wife.  Before your arrest you were living with a lady, Madam Yeung, who is now in court with a one-year-old boy, son of both of you.  I was also told that the lady is now 34 weeks into her pregnancy and is expected to deliver another baby of you next month.

19.  I was told by your counsel and also learned from letters written by you yourself, your father and Madam Yeung that you had committed these offences in extreme financial situation.  Since your discharge from prison for the last offence you had been convicted, you had tried your best to earn a living by working in a construction site.  However, you did not get your salary and were not even able to locate your employer.  Despite the support from your father, you were not able to make ends meet.

20.  Your counsel stressed that it was only under these circumstances that you had committed the offences.  You did not commit the offences for greediness and had given the whole of the proceeds to Madam Yeung to support the living of her and the baby. 

21.  You are not a first time offender.  Indeed your criminal conviction record can be said to be appalling.  You have been convicted on 20 previous occasions for about 40 offences.  You committed the first offence in 1993 when you were only 13 years old.  On that occasion you were put on probation for a robbery offence.  Then in the subsequent years you had been sent to DATC for treatment having been convicted of offences of possession of dangerous drug, theft and burglary. 

22.  Over the following years you had committed various types of offences including theft, burglary, assault, possession of dangerous drug and dealing with proceeds of indictable offence.  The last conviction took place in October 2010; for an offence of theft you were sentenced to 4 months’ imprisonment.  You finished serving that term of sentence on 8 January 2011.  In just slightly more than 2 months’ time, you started to commit this series of offences.

23.  All the offences were committed in commercial premises.  It has been consistently held that for a single offence of such nature, an immediate custodial sentence is appropriate and in normal circumstances a starting point of 2½ years should be considered.

24.  I found you a professional burglar.  You have persistently committed this nature of offences.  In just over a month of time you have committed 11 burglary-related offences.  All except two premises you burgled were in Tuen Mun and the exception took place in Sham Shui Po and Tsuen Wan. 

25.  I also found that most, if not all, of the offences were premeditated.  You were equipped with items fit to prise open the doors.  Most premises were ransacked.  Apparently, you committed the offences when the premises were vacated after hours.  I take into account the fact that no serious damage had been made to the victimized premises.  There is no evidence that you were acting in collaboration with others.  The total estimated value of the property lost was in the region of $63,000.

26.  Having considered the whole circumstances, I am of the view that a starting point of 3 years is appropriate for each individual charge.  The starting point is higher than the usual sentence by 6 months to reflect your persistency in committing offences of dishonesty. 

27.  In my judgment, the same starting point should be adopted even for the attempted burglary charges.  For those charges, you admitted to have attempted to enter the premises with the intent to steal therein.

28.  You are entitled to a one-third discount for your guilty pleas.  I was told that you committed the offences since your family was in great financial difficulties.  This strictly, however, is seldom recognized as a mitigating factor. 

29.  I am aware that you have a one-year-old son and are expecting another child.  Obviously, your children will suffer as a result of your imprisonment.  However, this is a matter you should have taken into consideration before you embarked on commission of the offences. 

30.  However, having heard your counsel, as a matter of clemency, I am prepared to give you a further discount of 3 months for each charge.  I therefore sentence you to 21 months’ imprisonment for each charge.

31.  You have committed 11 separate incidents of offences.  As a matter of principle, the sentences should run consecutively, subject to totality.  Having regard to the totality principle and cases such as HKSAR v Fan Kit Hung, CACC62/2009, in my judgment, a total term of 4 years is appropriate.  To give effect to this, I order that the sentence in respected on Charge 2 to Charge 10 to run concurrently with each other but the aggregate sentences of Charge 2 to Charge 10 to run wholly consecutively to that of Charge 1, and 6 months of Charge 11 to run consecutively to the aggregate sentences of Charge 1 to Charge 10.