HKSAR v. TSUI CHI WAI

DCCC721/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 721 OF 2012

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  Defendant has pleaded guilty today to three charges, the first being theft, contrary to section 9 of the Theft Ordinance, Cap.210; the 2nd and 3rd charge, the defendant has pleaded guilty to, are burglary charges, contrary to section 11(1)(b) and (4) of the same ordinance.

The facts

2.  PW1, the victim of Charge 1, lives at Joyful Home, a hostel in Tai Kok Tsui.  At the material time being early May 2012, the defendant also lived in this hostel.  From the antecedent, I can see that the defendant in fact was living there from March this year. 

3.  On 21 May 2012, PW1 noticed the defendant wearing his watch that he had lost a week earlier.  Defendant admitted that he had found this watch, taken it as his own and was wearing it on that morning, hence Charge 1.

4.  As a result of this theft, the defendant was expelled from this hostel. 

5.  The burglary offences of Charges 2 and 3 were committed when the defendant returned twice to this hostel in the dead of the night.  The offence dates were on 20 June and 25 June respectively. 

6.  From the facts, the defendant agreed that he climbed up pipes to a balcony and entered the hostel through open doors.  The defendant entered locked bedrooms and stole the mobile phones of both victims. These two burglaries were captured on CCTV.

7.  Having lived there, it was easy for the defendant to find his way around the hostel.  He took full advantage of his knowledge of its layout. 

8.  It has been explained to the court that the defendant was financially desperate and stole for food, cigarettes and transportation money.  Upon the defendant’s arrest, he made full admissions to the police. 

9.  As I have said, the loss suffered by the victim of Charge 2 was $480 and the loss suffered by the victim of Charge 3 was $300.

10.  The defendant is not a man of clear record; in fact, he has seven previous convictions, six relate to dishonesty, theft.  And when the defendant committed these three offences he was in breach of a suspended sentence.  On 20 January this year Kwun Tong Magistracy imposed a term of imprisonment of one month, suspended for 12 months, for an offence of shoplifting. 

11.  I have heard full mitigation on the defendant’s behalf today.  I have received a mitigation letter from the defendant expressing his remorse and promising to turn over a new leaf.

12.  Defendant has made full restitution of the victim’s loss today.

13.  Defence counsel has submitted authorities to assist the court, in particular, stressing that where there is restitution, a discount should be applicable.  A defendant who makes restitution should be entitled to a discount.

14.  In this case it is a small gesture in view of the seriousness of the charges, 2 and 3.  However, it is a gesture nonetheless that I will take into account. 

15.  I have heard mitigation relating to the defendant’s background.  He’s 38 years old, not highly educated, on CSSA and is suffering from a mental illness but has been receiving treatment.  Defendant’s best mitigation today is his plea of guilty. 

16.  Normally, where a burglary of domestic premises, and this hostel can be classified as domestic premises, the starting point would be 3 years’ imprisonment in the absence of any aggravating or mitigating factors.

17.  Having considered - defendant, please stand up - having considered all the factors I have referred to, including the facts of the case, mitigation I have heard, defendant’s plea and restitution made, for Charge 1, I will take a starting point of 9 months’ imprisonment.  For Charges 2 and 3, I take a starting point of 3 years’ imprisonment. 

18.  Defendant is entitled to a discount of one-third for his plea.  Where there has been restitution for Charges 2 and 3, I will discount the sentence by a further 2 months. 

19.  I have also taken into account the totality principle and the fact there have been two burglaries that were committed some days apart.

20.  For Charge 1, I impose a sentence of 6 months’ imprisonment; Charge 2, it will be a term of imprisonment of 1 year and 10 months; Charge 3, 1 year and 10 months’ term of imprisonment.  Charge 1 will run concurrently to all charges.  For Charge 3, the last burglary offence, of this 1 year and 10 months, I will order that 4 months be served consecutively to Charge 2, the balance concurrent.  That would mean for 3 charges, a total of 2 years and 2 months’ sentence.

21.  There will be a compensation order of $480 to PW2 and $300 to PW3.

22.  Lastly, I deal with the defendant’s breach of suspended sentence imposed by Kwun Tong Magistracy.  That suspended sentence was imposed for an offence that involved dishonesty.  Within that suspension period, the defendant committed offences that involve elements of dishonesty. I see no reason not to activate this suspended sentence.  I will activate the one month of KT356/2012.  This one month will be served consecutively to the sentence imposed today.  The total imposed today will now be 2 years and 3 months’ imprisonment.  Do you understand that sentence?

DEFENDANT: Yes, I do.