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DCCC 168/2020
[2020] HKDC 671
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 168 OF 2020
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| Present: |
Mr Brian Chan, counsel on fiat, for HKSAR
Mr Kevin Ng of Kevin Ng & Co, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
Burglary (入屋犯法罪) |
REASONS FOR SENTENCE
1. The defendant pleads guilty to one charge of burglary of domestic premises, contrary to section 11 of the Theft Ordinance[1].
2. Full particulars of the offence are set out in the summary of facts admitted by the defendant.
3. In August 2018 Ms Fu was residing at Room 239, Nam Yat House, Nam Shan Estate in Shek Kip Mei. At around 1 p.m. on 5 August 2018 Ms Fu left home having secured the premises.
4. When Ms Fu returned home at around 8 p.m. the same day she was unable to open the wooden door to her home which was locked from the inside. Ms Fu looked through the ventilation windows and saw signs of ransacking and damage to a window frame and racks inside the kitchen.
5. Outside the kitchen was a podium situated on the 2/F which could be accessed by the public via a gate on the 2/F. Photographs showing the gate, the podium and the kitchen window have been submitted to court[2].
6. Ms Fu discovered three commemorative banknotes; about RMB 1,800; a jade pendant and a silver pendant were missing. The total value of the missing property was around $4,300.
7. Ms Fu called the police. During police investigation one palm print of the defendant was lifted from the exterior of a cabinet inside the flat. The defendant was arrested on 18 November 2019 when he was leaving Hong Kong for Macau.
Mitigation
8. In passing sentence, I have carefully considered the oral and written submissions of Mr Ng, including that the defendant’s mother passed away shortly before he committed the burglary and that having been unemployed since 2017 he committed the burglary out of financial destitute and greed[3].
Starting point
9. The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.
10. Mr Ng submits the burglary was opportunistic[4]. I do not agree. The defendant did not pass by an open door or vacant premises and steal food or items of little value[5]. The defendant climbed through the kitchen window and ransacked the premises.
11. I am satisfied the proper starting point after trial is 3 years’ imprisonment.
Aggravating feature
12. The defendant has appeared in court on 17 occasions between 1998 and 2020 amassing a total of 27 convictions including convictions for robbery, burglary and theft.
13. The defendant has three convictions for burglary in 2001 and 2014. In 2014 the defendant was sentenced to a total of 3 years and 2 months’ imprisonment for two charges of theft and one charge of burglary. I was the sentencing judge.
14. The defendant last appeared in court on 13 May this year when he was sentenced to concurrent sentences of 8 months’ imprisonment for four offences of theft committed in December 2019, over sixteen months after the burglary[6]. Mr Ng informs the court that the defendant finished serving sentence on 12 June 2020.
15. When I sentenced the defendant in 2014 I was satisfied the defendant was a persistent offender and enhanced the starting point for each offence by 3 months’ imprisonment.
16. Mr Ng refers the court to two sentencing cases in the District Court where the starting point was not enhanced by reason of previous convictions[7]. I have considered these cases.
17. Mr Chan informs the court that the defendant was released from prison on 30 May 2016 and not in 2015 as stated in paragraph 17 of the written mitigation submission. The defendant has confirmed in court that he was released in May 2016.
18. The defendant therefore committed the burglary just over two years after his release from prison. The defendant reoffended in offences of burglary within a shorter period than the defendants in the two cases referred to by Mr Ng[8].
19. I am satisfied the defendant is properly to be regarded as a persistent offender in offences of dishonesty. I am satisfied an enhancement of 3 months is again appropriate thereby increasing the starting point to 3 years and 3 months’ imprisonment.
20. Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 years and 2 months’ imprisonment.
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(D. J. DUFTON)
District Judge |
[1] Cap 210.
[2] See photographs 1 (the gate), 2 (the podium) and 4 & 6 (the kitchen window).
[3] See §§2 - 4 of the written mitigation submission.
[4] See §§7, 8 & 12 of the written mitigation submission.
[5] See for example HKSAR v Cheung To Ming [2006] 2 HKLRD 260; HKSAR v Chau Man Ying CACC 439/2011 and HKSAR v Hai Chung Po CACC 115/2013.
[6] ESCC 2858/2019. The case papers, including the amended charges and amended summary of facts were obtained by the court and shown to Mr Chan and Mr Ng.
[7] HKSAR v Siu Chi Pong DCCC 804/2019 and HKSAR v Mok Tsz Kin DCCC 631/2019. I was the sentencing judge in HKSAR v Mok Tsz Kin.
[8] In HKSAR v Siu Chi Pong the defendant committed burglary in April 2019. The defendant had seven previous convictions for offences of dishonesty. No particulars are given in the Reasons for Sentence save that one was for burglary in 2007. In HKSAR v Mok Tsz Kin the defendant committed burglary in March 2019. The defendant had three previous convictions for burglary in 2013 and 2014. The defendant was released from prison in 2015.
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