HKSAR v. CHEUNG WING LAP

 DCCC1192/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1192 OF 2010

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Reasons for Sentence

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1.  Defendant, you pleaded guilty to a single offence of attempted burglary, contrary to sections 11(1)(a) and (4) of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap. 200. You admitted the Brief Facts and I convicted you.

2.  Briefly, the facts were as follows. At about 2108 hours on 18 September last, Police Constables 34328 (PW1) and 145 (PW2) were on plain-clothes patrol at Ban Fung House, Fung Tak Estate, Wong Tai Sin. They saw you acting furtively at the staircase area of the 10th floor. They observed you smoking a cigarette and looking around suspiciously. You then discarded the cigarette and walked towards Room 1025. You used your left hand to lift up the lock of the metal gate of that room twice, trying to open the lock but failed. You appeared to spot PW1 and started to run away. PW1 and PW2 gave chase and PW1 and 2 pursued you. By the beat radio they relayed your description to colleagues and PW3, PC 58628, stopped you at the ground floor.

3.  Arrested and cautioned, you admitted to tampering with the locks of a number of rooms in the building when you were going from the 3rd to the 10th floor. Your intention was to go into the premises to steal if one of these locks had been unsecured. You were unable to say which rooms you had attempted to go into.

4.  In a subsequent video recorded interview under caution, you admitted you gained entry into the building by following a resident. You then walked up the stairs from the 3rd floor podium to the 10th floor. You admitted to tampering with several locks along the way with the intent to gain entry to any room where the lock was unsecured. Fortunately, none were. Upon arrival at the 10th floor, you took a short break for a cigarette. You then lifted up the lock of the gate of Room 1025, intending to open the lock but failed. You spotted PW1 and decided to flee as you suspected him to be a police officer.

5.  Tsui Hei-mui (PW4) was sleeping inside the room of which she was the occupant. She does not know you.

6.  You admitted to having been convicted on 8 occasions, 6 of which involved burglary and the other 2 loitering. However, the record tells a fuller picture and that you accept that record and Mr Cheung admits that you committed 15 previous burglaries on those occasions. These were in fact a mixture of actual burglaries and attempted burglaries.

7.  On your behalf Mr Cheung entered comprehensive mitigation. Amongst other things, he told me you are 43 years of age, unemployed for the past 2 years, one of 6 siblings and you resided with your elderly mother of 80.

8.  He submitted a letter which you had written to me. I have read and considered the content of that letter and taken it fully into account. Also, he told me that you were not in receipt of CSSA and the offence resulted from your inability to find a job shortly after your discharge from prison on the last occasion.

9.  Mr Cheung submitted that this offence was committed on impulse as you were returning to your home in the same estate. I was asked to treat it as an offence at the lowest end of the spectrum of criminality. Mr Cheung accepted that the usual starting point for such an offence involving domestic premises was one of 3 years. He referred to your plea of guilty and urged leniency upon me.

10.  Mr Cheung referred me to two sentencing authorities which I have considered. The first case was HKSAR v Lau Kwok Cheung, HCMA851/2001. This was a case of conspiracy to burgle non-domestic premises where the magistrate adopted a lenient sentence. That was a sentence of 15 months and the court declined to interfere with that. Also, the case of HKSAR v Li Mo Kang, CACC465/2002. In this case a starting point of 3 years was adopted for attempted burglary and that was approved.

11.  I turn now to the sentence itself. This is a case of attempted burglary of domestic premises. Indeed on the facts and from your admissions, you are fortunate to be charged with only one offence. You accept that you tried the locks of several units. However, I am dealing with the one offence and one offence only.

12.  You have pleaded guilty and that is to your credit although that was on the day set for trial. I accept that this was an opportunist attempted burglary. This is supported by the fact that no implements were found upon you. However, I do have to comment that you have an appalling criminal record especially related to burglary. There are 15 previous offences of burglary or attempted burglary and 2 of loitering. Given that record, I will be fully justified to adopt a higher starting point as you are such a profound repeat offender.

13.  On the facts of the case themselves, it is clear that though this is an attempt that had any of those locks been unsecured, you would have entered the premises and completed the offence of burglary.

14.  Taking all matters into account, I am not going to adopt a higher starting point than the usual. I take as a starting point of 3 years’ imprisonment, reduced to 2, you will go to prison for 2 years.