HKSAR v. CHAN KWONG CHUN AND ANOTHER

DCCC660/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 660 OF 2012

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Reasons for Sentence

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The Charge

1.  The two defendants, D1 and D2, came before me this morning and each pleaded guilty to a single charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.  The Particulars of Offence avers that,

“Chan Kwong-chun and Ko Shun-tak, on the 15th day of May, 2012, in Hong Kong, having entered as trespassers part of a building known as ‘Man Fung Consumer House Hold Products’, Shops A and B, Ground Floor, In House, No. 307 To Kwa Wan Road, Kowloon, stole therein two shopping handcarts, two electric rice cookers, one set of electric drill with 3 sets of drill bits, two kettles, one camp-lamp, two recycle bags, two plastic bags and cash of $1,138.60 Hong Kong currency.”

The Facts

3.  Both defendants were caught red-handed and the facts of this case are straightforward.

4.  The premises in question is a commercial premises situated at Shop A and B, Ground Floor, In House, No 307 To Kwan Road, Kowloon.  Inside the premises there was a glass wall which separated the warehouse and the shop.  Nylon awning was used to cover the top of the warehouse.  Behind the warehouse was a machine room for air-conditioners.  The machine room had a metal door which led to a rear lane adjacent to Mei King Street, To Kwa Wan.  The said metal door however was always unlocked.

5.  At around 11.48 pm on 15 May 2012, police officers who were conducting an anti-burglary operation saw both defendants climbing out from the premises to the rear lane.  Two police officers, PW1 and PW2, were deployed to arrest the defendants.  Upon arrival at the lane, they saw both defendants walking out from the lane and at that time D1 was pulling a blue shopping handcart, whereas D2 was carrying a rucksack. Both defendants were immediately intercepted and arrested by the police officers.

6.  Subsequently, other police officers also arrived at the scene and took over the case which included DPC51654 (PW3) and also DPC52357 (PW4).  PW3 noticed another orange shopping handcart located 3 metres away from D1.  PW3 then cautioned the D1 and under which he admitted the offence.  D1 later led PW3 to the metal door and admitted to him that he committed the offence through opening this door.

7.  PW4 also arrested and cautioned D2 under which D2 also admitted the offence.

8.  The items which have been particularised in the charge were later found by the police inside both Exhibit 1 and Exhibit 2, which also includes items which were used in the course of burglary including two hacksaws, two pliers, two screwdrivers, one chisel and one torch (Exhibit 11 to Exhibit 15). 

9.  At the time of arrest D1 was also found in his possession one blue surgical facial mask, one black torch, one Nokia mobile phone and cash of HK$9,039.

10.  From D2 it was also found in his possession a blue cap and also cash of HK$191.20, RMB276, MOP700 and US$13.

11.  In the subsequent video recorded interviews both defendants had admitted the offence.  In particular, D1 also admitted using the mobile phone (Exhibit 20) to contact D2 during the course of the burglary.

12.  Lam Shuk-yin (PW5), was a salesperson of the company who subsequently confirmed that when she left the premises at around 10 pm on 15 May 2012, she secured the roller shutters of the premises before she left.  She confirmed that the properties which were more particularised in the charge belonged to the company.  She also confirmed that around 3’ x 3’ of the glass wall was broken which incurred a repairing cost of HK$4,500 and also the same size of the awning was also damaged, incurring a repair cost of HK$2,800, making the total repairing cost of these two items in the sum of HK$7,300. 

13.  The total value of the stolen properties according to the Facts was HK$4,079.50.

Criminal records and the background of the defendants

14.  D1 is now 59 years old and he had only received a Primary 3 level of education in China.  In the past he has been appearing in court 12 times involving 18 charges out of which 11 were burglaries while 3 were of attempted burglaries.  He was last discharged from prison in January 2012.  In other words, it was only about 4 months when he committed this offence after he had been discharged.

15.  D1 had two daughters and one son. They are grown up adults and the wife and the childrens are all living in Hong Kong while he said he himself lived in Shenzhen.

16.  D2 is now 58 years old.  He has only a Primary 4 level of education in China.  He had also in the past appeared in court for 11 times involving 17 charges altogether, out of which 9 were burglary.  He was last discharged from prison in June 2011. 

17.  His wife, who is now 38 years of age, is now living in Shenzhen.  She is his second wife and in the previous marriage, he has also two sons and a daughter, who are now grown-ups already.

18.  In mitigation, Mr Lam, solicitor for both defendants, had urged the court to be as lenient as possible and perhaps to consider giving each of the defendants a last chance to impose a lenient sentence.  He said that the burglary committed in this case is not of a sophisticated nature and most of the items that have been stolen were for the self-use of each defendant.

19.  In D1’s case, a letter of mitigation has been submitted, and in D2’s case, two letters of mitigation have also been submitted for my consideration.  I am not going to refer to the details of these mitigation letters.  Suffice it to say that each defendant had expressed remorse in these letters and gave some explanations as to the reasons why they committed the present offence.  The reasons were purely economic. 

20.  In D1’s case, he told the court that he had been visited by the wife and the children during the remand in custody and the family members had agreed to take him back after he would be discharged from the prison and D1 had promised the court that he is determined to turn over a new leaf and not to commit an offence again.

21.  In D2’s case, Mr Lam also informed the court, relying on the letters by the defendant and his wife, that he only came to notice that the wife was pregnant after he was arrested and remanded in custody.  His wife being a pregnant woman of an advanced age, he was most worried about the well-being of her and also felt very sorry that the wife would be left unattended during her pregnancy. 

22.  He also submitted to the court a letter from his friend who had promised to support his wife during this time and also promised to offer him a stable job after his release.  He told the court that he would not commit any offence in the future and promised to return to steady employment.

Sentencing considerations

23.  In R v Wong Man [1993] 1 HKC 80, the Court of Appeal had said that the proper starting point for burglary of non-domestic premises would be 2½ years’ imprisonment for a first offender of full age (as per Macdougall JA) as explained in HKSAR v Sim Ka Wing, CACC450/2000.

24.  The present case is of course a classic case of burglary of a commercial premises.  While I can understand the reason why both defendants had committed the present offence because of economic pressure, the court can never accept that reason as mitigation. 

25.  As far as D2 is concerned, the court also has much sympathy for his wife.  However, the Court of Appeal has said so many times before in the past that in serious offences such as the present, family circumstances virtually play no part in mitigation.

26.  I cannot lose sight of the fact that both defendants are recidivists of burglary charges, and looking back at their records, the propensity for them to commit the offence whenever they have economic problems are just so high.

27.  The Court of Appeal has said that this is not a punishment of their records.  However, if a person is shown to be a repeated offender, it is the duty of the court to consider imposing a sentence which can properly reflect the gravity of the matter in order to protect the public and also to deter the same defendant from committing the offence again in the future.  (See HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, 833)

28.  In the case of HKSAR v Cheng Wai Kai (unreported) CACC338/2007, the Court of Appeal has said that the starting point of burglary could be adjusted upwards for aggravating circumstances, and one or more of those circumstances that have been stipulated by the Court of Appeal include that the offence was committed by two or more persons, that the offender was a professional burglar and not just an opportunist, and, last but not the least, that the defendant had previous convictions particularly similar in nature.

29.  Looking at all these aggravating factors, firstly, in this case I regard that the offence was a carefully planned offence though not sophisticated.  Secondly, the offence was committed by two persons.  Finally, each of the offenders was a professional burglar with many previous convictions.  Because of the presence of all these aggravating factors, I take the view that the starting point of non-domestic burglary, which is 2½ years, should be increased by 9 months and becomes 39 months. 

30.  I will therefore in each of the defendants’ case adopt 39 months as the starting point.

31.  In passing, I also made a Compensation Order in the sum of $7,300.  Usually the Compensation Order in a case involving two defendants should be paid by the two defendants jointly and severally.  In this case there is a total of $9,039 found in the possession of D1 and Mr Lam had taken instructions and informed me that it had already been agreed between the two defendants that the $7,300 compensation can be directly taken out from the monies found in D1.  This compensation is therefore payable to the company which is the victim of the present charge, Man Fung Consumer House Hold Products.

32.  I should also say that in deciding that the sentence for each defendant should be increased by 9 months, I have already taken into account the compensation which has been offered by the two defendants.  As such, the only mitigating factor which is effective is the plea of guilty which entitles each of the defendants a customary one-third discount.

Order

33.  Each defendant’s sentence will therefore be reduced by 13 months and hence, D1 and D2 will be each sentenced to 26 months’ imprisonment accordingly.