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DCCC 898/2020
[2021] HKDC 492
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 898 OF 2020
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HKSAR |
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CHEUNG Chi-wai, Roy |
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| Before: |
H.H. Judge G. Lam |
| Present : |
Ms. Judy Ma, counsel on fiat, for HKSAR. |
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Ms. Vivien Chan instructed by M/s Victor Yeung & Co., assigned by the Director of Legal Aid, for the defendant. |
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REASONS FOR SENTENCE
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The defendant pleaded guilty to a charge of "Burglary". He inserted a stick through a hollow grid of the metal gate of a public housing unit to hook and steal a bag from the flat.
Summary of Facts
2. The premises particularized in the Charge ("the Flat") are a housing unit situated at the 27th Floor, Heng Tsui House, Fu Heng Estate, Tai Po ("the Building"). The Flat's entrance consisted of a metal gate and a wooden door. Mr. Hui (PW1) resides at the Flat alone.
3. About 5:00 a.m. on 1 August 2020, before going to bed, PW1 locked the metal gate of the Flat but left the wooden door open. He placed his bag on a desk near the Flat's entrance. PW1's bag contained the properties particularized in the Charge including his HKID card, bank cards, USB memory sticks and cash (valued at about $13,700 in total).
4. PW1 woke up around noon on the same day. He discovered his bag and all the properties contained in it missing. The Police was alerted.
5. CCTV footage of the Flat captured the defendant wandering outside the Flat for about a minute at 10:30 a.m. on 1 August 2020. Shortly afterwards, he appeared again between 10:43 and 10:49. He inserted a metal stick through a hollow grid of the Flat's metal gate to hook onto the strap of PW1's bag. He then moved the bag towards the metal gate. When the bag reached the Flat's entrance, he inserted his hands into the Flat to squeeze the bag through a hollow grid of the metal gate[1].
6. CCTV footage of the Building captured the defendant entering the lift on the 21st Floor and leaving the Ground Floor around 11:00 a.m. on 1 August 2020. Around 2:20 p.m. on the same day, he entered the lift on the Ground Floor and exited on the 23rd Floor.
7. After viewing the CCTV footage, police officers searched the rear staircase of the Building. Around 3:25 p.m. on the same day, they found the defendant smoking at the rear staircase on the 25th Floor. He ran downstairs upon seeing the Police. He was arrested on the 24th Floor. Under caution, the defendant admitted that he had thrown the stolen properties into a rubbish bin on the footbridge between Fu Heng Estate and Tai Yuen Estate.
8. Upon search, a number of stolen properties including $3,430 cash, cash coupons and ear phones were found in the defendant's bag. The Police later recovered more stolen properties (mainly membership cards and bank cards) from the rubbish bin mentioned by the defendant.
Mitigation & Sentence
9. The defendant is 41. He has 5 conviction records, which included 3 "Theft" offences, 2 "Robbery" offences and 1 "Burglary" offence. He has an 8-year-old son with his ex-girlfriend, but they do not reside with the defendant. Defence counsel Ms. Chan informed me that prior to his arrest, the defendant resides with his mother and elder brother at the Building. After his release from prison in September 2018, the defendant worked as a senior repairman in a properties management company earning $17,500 per month. In early 2019, he sustained an eye injury in an industrial accident and had to resign.
10. In mitigation, Ms. Chan submitted that the defendant ran out of money a few months before the present offence. He foolishly resorted to stealing things from a neighbour living in the same building.
11. The defendant is no stranger to theft-related offences. He is also in breach of a suspended sentence for a "Theft" offence (FLCC 845/2020). He was sentenced in mid-June 2020. In less than 2 months, he committed the present "Burglary" offence.
12. Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. The normal starting point for domestic burglary is 3 years' imprisonment. From a layman's point of view, there may not have been any "breaking in" in the present case; however, I do not see any reason why I should depart from the sentencing guideline.
13. Notwithstanding the defendant's conviction records, I consider a starting point of 3 years' imprisonment just and appropriate in the present case. With the timely guilty plea, the sentence is reduced to 2 years. Apart from this, I see no other mitigating factors which warrant any further reduction of the sentence. I sentence the defendant to 2 years' imprisonment for the present charge.
14. Based on the nature of the offence in FLCC 845/2020 as well as the timing of the commission of the present offence, there is simply no reason for me not to activate the suspended sentence in FLCC 845/2020. The defendant has no one but himself to blame. The court has given him all the "chances" which could be given to him.
15. Bearing in mind the totality principle, I order the entire sentence of 6 months' imprisonment in FLCC 845/2020 be activated and to be served consecutive to the sentence in the present case. In other words, the total prison term for both cases is 2 years and 6 months.
[1] In HKSAR v Khan Asif [2010] 1 HKLRD 404, the Court of Appeal held that for the purpose of the "Burglary" offence, the intrusion into the building of any part of the body, however small, satisfied the requirement of an entry. (paras. 23 to 27, pp.411 to 412)
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