HKSAR v. CHAN Chi keung

DCCC493/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.493 OF 2010

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Reasons for Sentence

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1.  The defendant was convicted after trial of one charge of attempted burglary. It was found that he on 13^th March 2010, in Hong Kong, attempted to enter as a trespasser part of a building known as Flat 1005, 8^th floor, 1005 Canton Road, Mongkok, Kowloon, with intent to steal therein.

Background

2.  On the day in question, which was a Saturday at around 5:30pm, while the tenants (PW1 and PW2) of flat 1005 were at home, one of them heard some noise coming out from the kitchen. PW2 went into the kitchen and saw a man trying to prize open the kitchen window. PW2 shouted at the man, who then climbed down the scaffolding outside the window to the rooftop opposite and below.

3.  PW1 went downstairs to see if he could find the man but could not. He returned to his flat. Police was summonsed to the scene. After some time, the defendant was stopped by the Police and PW1 and PW2 were brought to the defendant. Upon seeing the defendant, PW1 and PW2 identified him as the man who was earlier outside their kitchen window.

Previous convictions:

4.  The defendant has  a total of 35 convictions in 21 court appearances. Of those convictions, 9 were for burglary, 4 for theft, 1 for attempted theft and 1 for going equipped for stealing. Item 5 in the Criminal Records shows 2 counts of burglary in 1996, item 17 shows 3 counts of burglary in 2002, item 20 shows 2 counts of burglary in 2005,  and lastly in 2007 2 counts of burglary. The defendant was last released on 20^th February 2010, 21 days before committing the present offence.

5.  The prosecution referred me to the case of HKSAR v Li Mo Kang, CACC 465/2002, supporting the proposition that the sentencing guidelines for burglary are applicable in attempted burglary cases as well. Mr. Lee for the defendant did not dispute that.

Mitigation

6.  The criminal records and antecedents of the defendant are admitted. Mr. Lee did not put forward any mitigation in view of the criminal records of the defendant, just that he wished the court to be lenient.

Sentence

7.  The attempt is to burgle a domestic premises. Guidelines sentence for burglary of a domestic premises, without further mitigation or aggravating factors is 3 years’ imprisonment. Sentence for inchoate offences need not differ from the sentence for a completed offence and in our particular case, it should not.

8.  There is one serious aggravating factor in this case and that is the appalling criminal record of the defendant. Not only that, the defendant committed the present offence just 21 days after he was last released from jail for another burglary of another domestic premises. A deterrent sentence is clearly necessary. I have noted that on the previous occasion, a higher starting point of 4 years had already been adopted by the District Court.

9.  I have also noted that the defendant had chosen to climb up the scaffolding to attempt to burgle the flat on a late Saturday afternoon. It was not working hours and it is more likely that the residents would be in the flat. The defendant had become more daring, if not more desperate.

10.  For the present offence, given the aggravating factor of being a repeated offender and the audacity of the time of the attempted burglary, I will adopt a starting point of 4 years’ imprisonment. Since the defendant is convicted after trial, there is no discount and he is sentenced to 4 years’ imprisonment.