HKSAR v. FAN KIT HUNG

DCCC508/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 508 OF 2013

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

2.  The particulars of offence provide that between 5 September 2012 and 6 September 2012 in Hong Kong, having entered as a trespasser part of a building known as Man Lai Beauty Company Limited, Flat Nos. A-B, 1st Floor, No. 37A Chung On Street, Tsuen Wan, New Territories, you stole therein two keys.

3.  The admitted facts provided, inter alia, the following:-

(1) Miss Cheung Siu-ling (“PW1”) is the proprietor of a beauty parlour known as Man Lai Beauty Company Limited situated at Flat Nos. A-B, 1st Floor, No. 37A Chung On Street, Tsuen Wan, New Territories (“the Beauty Parlour”).

(2) At around 7:30 am on 6 September 2012, PW1 returned to the Beauty Parlour and found that the wooden door was prized and left ajar. PW1 also found that the glass door of the Beauty Parlour was smashed with glass fragments scattered on the floor. A fire extinguisher which was originally kept at the 1st floor staircase, a piece of tissue paper with blood, glass fragments with blood and several bloodstains were found on the floor of the hallway outside.

(3) Inside the Beauty Parlour, PW1 found a pair of underpants with blood, which did not belong to PW1, on the floor next to the cashier, a row of toilet paper with blood and a rubbish bin with bloodstain in the toilet.

(4) Upon checking, PW1 found two cashier keys missing from the unlocked drawer of the cashier. The case was reported to the police. PW1 estimated that the cost for repairing the wooden door and the glass door was about HK$13,300.

(5) Those exhibits stated in sub-paragraphs (2) and (3) above were seized at the scene and sent for DNA examination. Upon examination, the DNA obtained from the bloodstain of the following exhibits found at the scene, namely, the piece of glass fragment, the roll of toilet paper, the rubbish bin and the pair of underpants matched with that of the defendant.

(6) CCTV footage of the CCTV camera installed inside the Beauty Parlour captured that the defendant entered the premises and ransacked therein at around 2:30 am on 6 September 2012.

4.  In the course of his submissions in mitigation, Mr Andrew Kam, solicitor acting for the defendant today, pointed out that the two keys stolen were in fact taken from a drawer underneath the cashier (i.e. the drawer was not part of the cashier itself). This was accepted by the prosecution.

5.  Mr Andrew Kam has made very full and thorough mitigation on your behalf.  I have considered all that he has to say on your behalf. 

6.  Regarding your background, you are 41 years of age, born in Hong Kong in May 1972.  You received education up to Secondary 3 level.  You live with your wife from a second marriage in Shenzhen.  You have a daughter aged 21 from your previous marriage.  You have a 58 years old mother.  At the time of the offence, you were working as a courier for a courier company, earning $9,000 per month. 

7.  You have 16 previous convictions, 13 of which were for burglaries and one of which was for attempted burglary. The 13 burglaries were convictions on a single occasion at the District Court in 2009 and the matter went on appeal to the Court of Appeal in CACC 62/2009 (Judgment of the Court of Appeal dated 14 July 2009).  At paragraph 2 of the Judgment, the Court of Appeal described the facts of that case as follows:-

“The facts of the case were that over a four-month period from May to September in 2008 the applicant obtained a total of $130,825 in cash, as well as clothing and other items, from various shops at locations in the New Territories, Kowloon and Hong Kong, none of which was recovered. Most of the burglaries occurred at night when the victimised premises were empty. The exception concerned the offence the subject of the 1st charge when the applicant was seen by a staff of the premises taking $75,000 from the shop’s cash drawer. The staff member chased the applicant who, however, successfully escaped with the money.”

At paragraph 11 of the same Judgment, the Court of Appeal commented that the number of offences was very high and there was no doubt that the defendant was a professional. The defendant was sentenced to 4 years’ imprisonment.

8.  On 9 December 2011, the defendant was sentenced to 16 months’ imprisonment for another offence of attempted burglary.

9.  Regarding the present case, Mr Andrew Kam submitted that on the night of the offence, the defendant had an argument with his wife and he left for Hong Kong to have drinks with his friends.  The defendant and his friends drank lots of beer and went to the roof of the building in question.  His friends left.  The defendant went down the stairs and came to the 1st floor of the building.  The wooden door was already opened.  Out of frustration over the argument with his wife, he smashed the glass door of the Beauty Parlour with a fire extinguisher.  In the process, his wrist was cut by the glass and he was bleeding.  He went inside the Beauty Parlour to try to find something to stop the bleeding.

10.  I have no hesitation in rejecting this version of events put forward by the defendant. 

(1) It is entirely inconsistent with paragraph 8 of the admitted Summary of Facts which stated that CCTV footage showed the defendant ransacking in the Beauty Parlour.

(2) No explanation was offered by the defendant as to why he stole the two keys.

(3) No explanation was offered by the defendant as to paragraph 4 of the admitted Summary of Facts where it was recorded that the wooden door had been prized open.

11.  This offence of burglary was committed on non-domestic premises.  In R v Wong Man [1993] 1 HKC 80, the Court of Appeal held that the correct starting point for sentence in a case of burglary of non-domestic premises is 2½ years’ imprisonment.  In HKSAR v Sim Ka-wing, CACC 450/2000 (Judgment of the Court of Appeal dated 30 May 2001), Keith JA at page 5 gave further guidance as follows:-

“The conventional starting-point of 2½ years’ imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning and thus a degree of premeditation and planning is already built into the conventional starting-point. The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find. Likewise, the conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value.”

12.  This is not a case of a sneak thief who walks into an open office to steal whatever he can find.  In the present case, the wooden door was prized open and the glass door smashed.  The basic starting point of 2½ years’ imprisonment is clearly appropriate.  Moreover, you have a bad record of burglaries and attempted burglary.  The Court of Appeal had previously described you as a professional.  The previous sentences of imprisonment have obviously failed to deter you.  You are a menace to the society.  In the circumstances, a meaningful increase in the starting point is warranted as a deterrent [see: for example, HKSAR v Chan Kwong-chun CACC 299/2008 (Judgment of the Court of Appeal dated 4 March 2009)].  Accordingly, I would adopt an enhanced starting point of 33 months instead of 30 months’ imprisonment.

13.  I will give you full credit for your plea of guilty and reduce the term to one of 22 months’ imprisonment. Defendant, you are sentenced to 22 months’ imprisonment.