HKSAR v. CHOW HEI CHOY

DCCC1153/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1153 OF 2011

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Reasons for Sentence

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1.  The defendant enters a plea of guilty to one charge of burglary, brought against him under section 11(1)(b) and (4) of the Theft Ordinance, Cap.210, and to one charge of possession of a dangerous drug, laid against him under section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap.134.

Facts

2.  The facts to which the defendant agrees are as follows. 

3.  On the afternoon of 14 August 2011, a next-door neighbour walked past the subject premises at Room 1101, Chak Tsui House, Wan Tsui Estate, Chai Wan, and noticed various items placed outside the flat.  The neighbour notified the management office immediately. 

4.  A security guard arrived to look into the matter. He knocked at the door of Room 1101.  The defendant answered.  In response to the security guard’s enquiry, the defendant said he was the occupant’s brother and that the occupant had forgotten to bring his keys.  It was his brother, said the defendant, who told him to cut open the wire gauze of the ventilation window to go into the flat and look for the keys.  The defendant then climbed out of the flat through the ventilation window and told the security guard that he lived at Room 1135. 

5.  On his way towards Room 1135, the defendant took a foldaway chair and a mask with him, saying he would come back to take the rucksack that was lying on the ground.  He entered Room 1135 and returned about five minutes later, took the rucksack, and left. 

6.  A report was made to the police.  Mr Lee, occupant of Room 1101, was notified.  He returned to the flat to find the ventilation window damaged, his flat ransacked, and that a box containing cash in the sum of $150 and a mobile phone worth about $4,000 had gone missing.

7.  The following day, a team of police officers were notified that the defendant had been located.  They arrived at Chak Tsui House as the defendant emerged from the building.  They intercepted him and confirmed he lived at Room 1135.

8.  During the enquiry, a police officer saw the defendant drop an object onto the ground and step on it.  He asked the defendant what it was.  The defendant remained silent.  The officer seized the object, which turned out to be a plastic bag containing 3.59 grammes of herbal cannibas.

9.  The security guard arrived at the scene and pointed out that the defendant was the person who climbed into Room 1101 the previous day.

Conviction

10.  The court finds the defendant guilty as charged. 

11.  The defendant has had 15 criminal records prior to his current conviction, four of which related to dangerous drugs, but none relating to burglary. 

Mitigation

12.  In mitigation, the defence puts forward the following matters for the court’s consideration. 

13.  The defendant is now 44 years old and is a person of low education level. 

14.  The major mitigation factor is of course his pleas of guilty at the earliest opportunity.  

15.  His mother has recently had an eye operation, and one of his younger brothers has mental illness.

16.  The defendant asks the court for a lenient sentence, so that he can look after his mother as early as possible after he serves his prison term.

Discussion

17.  Burglary involves breaking into private property with intention to steal.  There is clear public interest in protecting private dwellings from unauthorised invasion.  Once burgled, even with extra anti-theft devices are installed, there will always be a lingering doubt that the home is no longer safe. 

18.  When a dwelling place is burgled, there is always a chance of occupants being inside, who may take action to protect their belongings, leading to severe consequences.

19.  The offence of burglary is all too common in Hong Kong. 

20.  In view of these factors, the Court of Appeal has laid down a sentence guideline of three years’ imprisonment in cases where domestic premises are burgled (HKSAR v Lau Pang [2004] 3 HKLRD 565). 

21.  As to sentencing in relation to Charge 2, it is an established practice to impose a sentence at the court’s discretion, given the nature of the dangerous drug involved.

22.  The court has considered everything that has been urged on the defendant’s behalf, but concludes that apart from his guilty pleas, nothing in the defendant’s personal and family background would warrant any further reduction in sentence. 

Conclusion

23.  For Charge 1, the court would adopt a starting point of three years, which is reduced by one-third on account of the defendant’s guilty plea, to one of two years’ imprisonment.

24.  A starting point of three weeks’ imprisonment should be adopted for Charge 2, which is likewise reduced by one-third to one of two weeks’ imprisonment.

25.  Having considered the principle of totality, the court orders that the sentences for Charges 1 and 2 should run concurrently. 

Order

26.  The defendant is sentenced to a term of imprisonment of two years.