HKSAR v. KWAN TIN KIT

DCCC 600/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 600 OF 2012

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Reasons for Sentence

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Introduction

1.  The defendant is convicted on his own plea of the 1^st charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, and the 2^nd charge of attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance and section 159G of the Crimes Ordinance.

Facts

2.  At about 8 am on 5 May 2012, a teacher of Buddhist Sum Heung Lam Memorial Colleage (“School 1”) situated at No.3 Leung Choi Lane, Tai Hing Estate, Tuen Mun, New Territories returned to School 1 and found that the alarm was going off. The teacher found that the staff room of School 1 had been ransacked. A window of the staff room was prized open and a ladder was placed by the window outside the staff room. Four notebook computers and one mobile phone were stolen from the staff room.

3.  At about 2:30 am on 17 May 2012, police officers saw a man entering the bush beside Tsung Tsin College (“School 2”) situated at No.9 Leung Choi Lane, Tuen Mun, New Territories. The man was carrying a backpack. He lit the torch, climbed over the fence of School 2 and entered School 2.

4.  At about 2:55 am on 17 May 2012, the police intercepted the defendant at a footbridge outside School 2. Search on the defendant’s backpack found three chisels, three screwdrivers, a pair of clippers, a cutter, eight keys, a labour glove, a pair of plastic gloves and a facemask. A torch was also found from the defendant. The defendant was therefore arrested.

5.  In a subsequent video-recorded interview, the defendant admitted under caution the following:

(i) At about 2 am on 17 May 2012, he took the tools and backpack from his home in Tuen Mun;

(ii) As he did not have any money, he intended to enter School 2 to steal. He climbed over the fence of School 2 and stepped into the school area. As he heard footstep noises coming from nearby, he got out of the school area and fled. He did not enter the building of School 2. He was then arrested by the police at the footbridge; and

(iii) The tools in his backpack were for burglary. He had burgled School 1 with those tools. He climbed into School 1 at night and used a pair of pliers to prize open the window of the staff room of School 1. He entered the staff room and stole four computers.

Previous conviction record and antecedents

6.  The defendant has 2 spent convictions relating to road traffic offences. For the purpose of sentence, I will disregard those convictions.

7.  The defendant was born in Hong Kong in October 1980 and is now 31. He has received education up to Form 5 level. He used to be a casual decoration worker. He is single and used to live alone in Po Tin Estate, Tuen Mun.

Mitigation

8.  In mitigation, Mr Ip submitted that the tools were not heavy equipment. As I do not have the chance to have sight of the tools or the photographs thereof, I will give the benefit of the doubt to the defendant and accept that the tools were not heavy equipment. Mr Ip also submitted various letters from Hong Kong Gamblers Recovery Centre and the defendant’s parents, aunts and cousin asking for leniency.    

Sentence

9.  In burglary of non-domestic premises, 2½ years’ imprisonment is the proper starting point in the absence of aggravating or mitigating factors: R v Wong Man [1993] 1 HKC 80, Secretary for Justice v Tsang Hon-yin [2004] HKCU 1497 and HKSAR v Khan Asif [2010] 3 HKC 31. 

10.  For each of the charges in the present case, I will adopt a starting point of 2½ years’ imprisonment. One-third discount is given to the defendant for his guilty plea thus reducing the sentence to 20 months for each of the charges. There being no other valid mitigating features justifying further reduction in sentence, the defendant is sentenced to 20 months’ imprisonment for each charge.

11.  Having considered the total sentences imposed in HKSAR v Chow Keung CACC 478/2006 and HKSAR v Ng Ngai Shan [2009] 1 HKLRD A3, I order 12 months’ imprisonment in the 1^st charge to run consecutively with the 20 months’ imprisonment in the 2^nd charge, thus making a total sentence of 32 months’ imprisonment.