HKSAR v. CHING KAI LAM

 DCCC412/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 412 OF 2009

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Reasons for Sentence

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1.  The defendant, Ching Kai-lam, appeared before me and pleaded guilty to one count of burglary.

2.  The offence took place on 23 March 2009.  The defendant trespassed into a building known as Ground Floor, No.5 Yim Po Fong Street, Mong Kok, Kowloon, and stole therein one welding machine. 

3.  The facts admitted by the defendant revealed that at about 2.15 am on the day in question PC1975 (PW2) and PC51873 (PW3) were patrolling outside Ground Floor, No.5 Yim Po Fong Street, Mong Kok, Kowloon, hereinafter referred to as “the location”.  Both officers suddenly heard a loud bang sound emitting from inside.  The location was a vacated shop and the stolen property, the subject matter of the charge, i.e. the welding machine, was placed in a metal box and was stored inside.  There was a padlock securing the said metal box.

4.  PW2 and 3 entered the location using a torch to illuminate the location.  As they entered, PW3 saw the defendant jumping down from the M/F of the location and fled along Pak Po Street.  The defendant was then wearing a pair of gloves and carrying a rucksack at that time.

5.  PW2 noticed that there were some prized marks on the metal box.  PW3 suspected that the defendant had stolen something from the location and he chased after the defendant and intercepted the defendant shortly afterwards.  He arrested the defendant and cautioned him.  Under caution, the defendant admitted that he had stolen a welding machine at the location out of greed.  He had left behind the welding machine on the staircase inside the location when he was escaping.

6.  The welding machine was later recovered from the location.  PW1, the foreman, responsible for decoration works at the location, viewed the photograph of the recovered welding machine.  He identified the recovered welding machine as his property.  A chisel, a torch and a recycle bag were seized from the location.  The pair of gloves worn by the defendant was also seized.

7.  During the cautioned interview, the defendant admitted entering the location to steal a welding machine with the use of a chisel found nearby.  He used the chisel to prize open the metal box containing the welding machine.  After taking the welding machine, he put it inside his bag.  As he heard some noise from outside, he escaped and dropped the said bag on the ground out of fear.

8.  The defendant identified the chisel, the pair of gloves, the torch and the bag seized from the location as the tools that he had used to burgle the location.

9.  The criminal record summary, of the defendant shows that the defendant has 33 previous convictions recorded against him, four of them were burglaries.  The present case was committed shortly after the defendant’s last release from prison.

10.  The antecedent statement of the defendant shows that the defendant was born on 2 September 1975 in Hong Kong.  He is now 34 years old.  He had received Form 3 education in Hong Kong.  He was unemployed when he was arrested.  He is single and he had a triad background, i.e. of Wo Shing Wo. 

11.  Mr Cheung in mitigation informed me that the defendant worked as a construction site worker on a casual basis earning $800 a day.  After the financial tsunami the defendant had great difficulties in finding work.  In order to meet ends and out of greed he committed the present case.  Mr Cheung submits that the defendant had no motive to inflict harm to any person.  The location was a shop under renovation.  The defendant committed the offence at about 2 am.  At that time he just wanted to find some valuable items inside the premises.  The only stolen item was the welding machine which was worth $1,000-odd.  The victim had suffered no loss as the machine was recovered. 

12.  Mr Cheung submits that the defendant is now very remorseful.  Prior to the defendant’s incarceration he was living with his aging stepmother.  Now the defendant wants to take care of his stepmother and to reunite with her after his release.  The defendant asks for a lenient sentence from this court. 

13.  In sentencing the defendant I have considered the facts of this case, the nature of the burglary in question and the background information of the defendant.  I have also considered all the matters urged on the defendant’s behalf by Mr Cheung in mitigation.

14.  It is well settled that for a single burglary of non-domestic premises, a starting point of 30 months’ imprisonment is appropriate.  If there were the presence of aggravating features, a higher starting point is called for.  The defendant is obviously a recidivist.  He had appeared before the court on 18 previous occasions.  Of the 33 previous convictions recorded against the defendant, 18 of them were dishonesty related and he had committed 4 burglaries in the past.

15.  In my judgment, a higher starting point is called for in light of the appalling criminal record of the defendant.  In the present case I take the view that a starting point of 33 months’ imprisonment is appropriate.  For his guilty plea, the defendant is entitled to one-third reduction.

16.  For the other matters urged upon me on behalf of the defendant, for example, the defendant wanted to take care of his aging stepmother, that the defendant was under financial stress at the time, that the victim had suffered no loss as the stolen property was recovered, these matters whether considered separately or in isolation, in my judgment, do not count as mitigating factors.

17.  For the well-being of the aging stepmother of the defendant, the defendant should have thought about his stepmother before he committed the offence.  The fact that the defendant was under financial difficulties provided no excuse for the defendant to pass his sufferings onto the victim.  The fact that the stolen property was recovered had nothing to do with the defendant.  It was due to the alertness of the police officers that they found the defendant in the course of committing the offence. 

18.  For the reasons given, I sentence the defendant to 22 months’ imprisonment.