HKSAR v. CHAN YUK CHUN AND ANOTHER

DCCC 609/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 609 OF 2016

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Reasons for Sentence

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1.  The situation today is that the 1st defendant has pleaded guilty to the 1st and 2nd charges which are charges of handling stolen goods and burglary, and the 2nd defendant has pleaded guilty to the charge of burglary. Both defendants have agreed the facts of the case that are relevant to them, and the 1st charge arose out of the facts of the 2nd charge, and so the 2nd charge is dealt with first in those facts.

2.  As far as that 2nd charge with which the 1st and 2nd defendants have been jointly charged, that occurred on 30 March last year, 2016, and those facts show that the 1st and 2nd defendants were seen walking along Des Voeux Road West by police officers.  Suspicions were aroused and the two men were seen entering a residential building in Queen’s Road West, Sai Wan.  The police officers kept observation outside the building.

3.  Some 40 minutes later, the 1st and 2nd defendants were seen to leave the building together.  The 1st defendant had a black bag in his hand.  Both men were then intercepted by the police, and the bag was searched.  Inside the bag were items that are shown in the particulars of the 2nd charge.

4.  It was found on further inquiries the domestic premises in that building, which is at 419N Queen’s Road West, had been burgled and that had occurred during the period that the police were keeping observation outside.  The residents of the residential property had left the property at about 1.15 and locked the iron gate and wooden door.  They returned about an hour later to find the door lock was prised open and damaged, and items had been taken, and they were items that subsequently were found in the black bag carried by the 1st defendant.  Also, a shoe print was lifted outside the premises of the 1st defendant’s right shoe.  And these facts support the conviction of both defendants on that charge, the 2nd charge.

5.  On the same day, the 1st defendant was taken by police to where he lived in Shek Lei Estate in Kwai Chung.  A total of five exhibits were seized.  There was a suitcase that contained various items, such as a waistband, a headband, plastic bag and caps, and they were found to be stolen property relating to another what is called domestic or residential-premises burglary case which had happened on 27 February 2016 at a flat in North Point Mansion in North Point, and that premises had been left locked, and when the residents returned, they found that the door lock was broken and the premises had been burgled.   

6.  And the 1st defendant admitted between 27 February and 30 March, he dishonestly received the stolen goods.

7.  As far as both defendants’ antecedents are concerned, they have been admitted. 

8.  The 1st defendant is aged 43.  He has six previous occasions in court ranging from 1988 when he was convicted of common assault and placed on probation.  As a young person, he was sentenced to a detention centre.  As an adult, he has been sentenced to 120 hours’ community service for a case of possession of instrument fit for unlawful purpose.  And, finally, in year 2002, he was convicted of burglary and received a sentence of 3 years’ imprisonment for that.

9.  As far as the 2nd defendant is concerned, he is aged 45.  He also has a criminal record, but those offences date from 1991 when he was convicted of assault and placed on probation.  He had some motoring offences around the 1990s but in 2004, he was sentenced to 6 months’ imprisonment for an offence of possession of a dangerous drug.

10.  As far as the wider background of the defendants is concerned, the 1st defendant is divorced and lives with his parents, has a son and daughter.  He has also worked as a construction site worker.  The 2nd defendant is divorced but has no children and has worked as an air-conditioning technician.

11.  The 1st defendant attributes his commission of these offences to straitened circumstances.  He has been supporting his aged parents and the two children that he has.  He borrowed money and was in debt. The 1st defendant also had provided some assistance to police which helped in revealing the existence of the 1st charge.

12.  And as far as the 2nd defendant is concerned, he has had mental difficulties, and I am told there is a diagnosis of psychosis in respect of him.  He also has some financial difficulties, and the two men decided to commit a burglary to relieve their financial problems.

13.  As far as the burglary with which they are both charged is concerned, the burglary was committed at a time when there would not be any residents inside the building, and the flat was empty although some damage was caused in the course of entering the premises.

14.  I turn now to the starting point for sentence in respect of these offences.  I will deal with the offence with which the defendants are jointly charged first.  That is the second offence, 2nd charge.  This is a residential, domestic-premises burglary.  There are clear guidelines set out for the starting points for sentence for such offences, and the starting point for sentence for a person of clear record convicted after trial is 36 months’ imprisonment or 3 years’ imprisonment.  That can be subject to various aggravating factors relating to the individual facts of the defendant and also the way in which the offence is committed.

15.  I do note that this was an offence committed jointly by these defendants.  That can be an aggravating factor.  However, having regard to the overall circumstances of how this offence was committed, I do not consider that in this case it need necessarily increase the starting point for either defendant beyond the 36 months of a normal domestic premises.

16.  However, as far as individual circumstances are concerned, for the 1st defendant, this is not the first time that he has committed a burglary.  That is an aggravating factor for him because it shows that the previous sentence of imprisonment failed to deter the defendant from committing this offence.  The previous burglary was committed in 2002 which is of some age now, but I do consider it is an aggravating factor that I should consider in relation to the 1st defendant.  

17.  So in relation to this 2nd charge, what I shall do is take an initial starting point of 36 months’ imprisonment for this charge.  As far as the 1st defendant is concerned, I consider that that starting point should be increased by 3 months to represent the failure of deterrence in relation to the sentence in 2002.  The starting point for sentence therefore for the 1st defendant will be 39 months’ imprisonment. He is entitled to a one-third discount from that.  So the sentence on the 2nd charge on him will be 26 months’ imprisonment.

18.  For the 2nd defendant, I will take a starting point at 36 months, reduce that by one-third for his plea of guilty to 24 months’ imprisonment.

19.  I now turn to the 1st charge which the 1st defendant faces.  He has admitted to the offence of handling stolen goods in relation to property taken from a domestic-premises burglary.  It can be that a starting point can represent the same starting point for sentence as the head offence, as it were, the offence for which the defendant is handling the goods which will be a burglary in this case. 

20.  It would appear that some time had elapsed between the commission of the burglary and the discovery of the goods.  What I shall do is take a starting point on the 1st charge for the 1st defendant of 24 months’ imprisonment and reduce that to 16 months’ imprisonment for his plea of guilty.  

21.  Now, the 1st defendant faces two charges committed at separate times.  They can be served consecutively.  To order them to be served consecutively would of course lead to a sentence that would be excessive.  I must consider at least some part of the 1st charge be served consecutively to that on the 2nd charge.  In order to achieve what I consider to be a proper overall totality for the 1st defendant, I shall order that 6 months of the 1st charge be served consecutively to the 2nd charge, giving an overall total sentence of 32 months’ imprisonment for the 1st defendant. 

22.  So the overall total sentence for the 1st defendant will be 32 months’ imprisonment; for the 2nd defendant, 24 months or 2 years’ imprisonment.