HKSAR v. IP HING NAM

DCCC 921/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 921 OF 2012

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Reasons for Sentence

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1.  This morning, defendant, you appeared before me and pleaded guilty to two charges, the 1^st charge being burglary and the 2^nd charge theft.

2.  The burglary charge avers that on 6 September 2012 in Hong Kong, you, having entered as a trespasser part of a building known as China and HK Renminbi Exchange Company, Ground Floor, Canny Industrial Building, No 33 Tai Yau Street, San Po Kong, Kowloon, attempted to steal therein.

3.  The theft charge avers that on the same date in the 1^st charge, at the road works site at Tai Yau Street near Ng Fong Street, San Po Kong, Kowloon, in Hong Kong, you stole one pair of gloves and one hoe, the property belonging to Luen Hing Engineering (Asia) Limited.

4.  You pleaded guilty to both charges and admitted the Summary of Facts and you are therefore convicted of both charges accordingly.

The Facts

5.  The facts in relation to both charges are simple and straightforward.

6.  Two police officers, PW3 and PW4, were in patrol at San Po Kong in the early hours of 6 September 2012.  At about 3:40 am in the morning, the policemen saw you wearing a pair of gloves (Exhibit 1) and holding a metal hoe (Exhibit 2) standing behind a light goods vehicle. Feeling suspicious, they put you under observation at a distance of about 8 metres. 

7.  Later you were seen proceeding to the front entrance of the money exchange company (“the shop”) named in Charge 1.  You were seen using Exhibit 2 and used it to prise open the roller shutter of the entrance of the shop.  You then lifted up the roller shutter, walked inside to the shop and pulled down the roller shutter.  About 5 minutes later, you lifted up the roller shutter again and walked out from the shop with Exhibit 2. 

8.  During the time when you were inside, the policemen also heard some knocking sound coming from the shop.  The policemen therefore approached and you were intercepted.

9.  PW3 arrested you accordingly and under caution, you admitted that you brought Exhibit 2 intending to steal money from the shop because you had no money.

10.  Later, during a video recorded interview, you also admitted having stolen Exhibit 1 from a road works site nearby.  You then went to the shop and used Exhibit 2 to prise in, however, you found it difficult to get inside the shop after prising the roller shutter and you gave up.

11.  PW1, one Mr Chu, the owner of the shop, later confirmed to the police that there in fact was a steel door installed behind the roller shutter. 

12.  After the police had reviewed the CCTV footage installed at the entrance of the shop, it was revealed that you actually tried to hit the steel door with the Exhibit 2 after you had got into the shop but you just could not open the door.  PW1 confirmed that there was damage to the steel door near the knob.  The shop, however, suffered no further loss.

13.  The supervisor of the road works, one Mr Kong, also confirmed that Exhibits 1 and 2 were tools which were usually placed in a site on the roadside every day during the time when the road works was in progress and he confirmed that you do not have any authority to use any of these tools.

Criminal record and the background of the defendant

14.  You are now 36 years of age.  You had only appeared in court once in 2009 in relation to two theft charges.  For these two offences you were sentenced in the Kwun Tong Magistracy for a total of 3 months’ imprisonment.

15.  You have attained a Form 5 education level.  According to your lawyer, Mr Fung, at the time of the offence you had been unemployed for about 6 months but before that you were working as a full-time construction worker, earning about $10,000 per month.

16.  You are still single but you did not have a fixed place of abode at the time of the offence.  Your father is 80 years of age and your mother is 77 and I was also told that you were born in a family with eight siblings but apparently your relationship with the family members was far from harmonious.

Mitigations

17.  Mr Fung emphasised to the court the fact that this is not a well-planned burglary committed by you and the reason why you have committed the present offence is because of your dire financial situation.  I was told that you were in fact starving for a few days before you finally decided to resort to committing burglary.

18.  Mr Fung urged the court to pass a lenient sentence, stating that you were now extremely remorseful and promised to seek help from the social worker after you were discharged from prison.

Sentencing considerations

19.  There is a tariff laid down by the Court of Appeal in relation to burglary of non-domestic premises.  For a person like you who is of full age who committed this sort of offence for the 1^st time, the proper starting point is 2½ years. 

20.  I accept what your lawyer said that this is not a well-planned burglary.  You did not even carry along the tools to commit the burglary.  You just stole it randomly from a nearby construction site.  However, that does not begin to mitigate the starting point that I have mentioned.  It only means that there is an absence of aggravating factors in this case. 

21.  I can understand why you resorted to committing burglary to resolve your financial problem but the court can never accept economic reasons for committing crimes. 

22.  I also accept that you were not a recidivist as you have no previous burglary record but you have a theft record already for which you have been sent away for 3 months but obviously you did not learn the lesson.

23.  The only mitigation that I can find is therefore your plea of guilty which saves a lot of court’s time and which is also a strong indication of remorse.  Because of that, you are entitled to the customary one-third discount of sentence.

24.  For Charge 1, I would therefore adopt the usual starting point of 2½ years which is 30 months’ imprisonment. After giving you the one-third discount, the sentence for this charge is one of 20 months’ imprisonment.

25.  For Charge 2, I will use 9 months as the starting point.  After giving you also the one-third discount, the sentence for this charge is 6 months’ imprisonment.

26.  Finally, because of the totality principle, I further order that 2 months out of the sentence of Charge 2 can be run concurrently with the sentence on Charge 1.  In other words, you have only to serve an extra 4 months for Charge 2, making a total of these two charges a sentence of 24 months’ imprisonment.