HKSAR v. CHEUK KAM ON AND ANOTHER

DCCC174/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 174 OF 2011

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Reasons for Sentence

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1.  Defendants, I convicted you after trial of a charge of attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, and section 159G of the Crimes Ordinance.

2.  I found that on 10 December 2010 you attempted to enter as trespassers part of a building known as 3rd Floor, No. 196 Hollywood Road, Central, with intent to steal therein.

3.  I found on that day, having been observed by a police officer, you both had walked to and fro along Hollywood Road for about 10 minutes looking for target premises to burgle. 

4.  You had eventually entered this building, No. 196 Hollywood Road, and were seen by a police officer to use a telephone headset cord which was threaded through the iron gate of the premises in question in an attempt to open the iron gate by hooking the loops of the cord onto the latch of the iron gate.  D1, you were using the telephone cord, whilst D2, you were holding a mirror underneath the latch of the gate so that D1 could observe what he was doing behind the gate.  There was no dispute on your case that you were in fact trying to open the gate.  I rejected your defence that you were trying to open the gate to look for drugs which you had dropped.

5.  I found that you had gone prepared and equipped with apparatus to open the gate to carry out your intention to steal from the premises.  The headset and the mirror were the apparatus used and were cleverly adapted for their intended purpose.  The headset was specifically adapted so that the loops could be used to hook onto the latch of the gate and open the gate in the manner D1 was trying to do with the gate in question. 

6.  Prior to you both being successful in opening the gate you were intercepted by police officers and you both ran away in different directions to each other.  You were eventually intercepted and arrested.

7.  Defendants, your counsel, Mr Kelvin Lai, has made very full and thorough mitigation on your behalf and I have taken into account all that he has had to say.

8.  D1, you are 59 years of age, a drug dependent, single and a street sleeper.  You have 37 previous convictions of which 20 are for dishonesty and 15 related to burglary or attempted burglary.

9.  D2, you are 55 years of age, are also drug dependent, married and living with your wife.  You have 29 previous convictions, 13 dishonesty related and one previous related to burglary.

10.  Mr Lai in his mitigation accepts that the starting point for attempted burglary after trial is one of 3 years’ imprisonment. He quite rightly points out that in view of the joint enterprise and your previous records, that the court may consider an enhancement of sentence.  He has, however, asked me not to consider enhancement in view of the fact that the previous burglary offences were committed some years ago.  For D1, your last similar conviction was 10 years ago for attempted burglary in 2002, and for D2, the last burglary was back in 1985.  Mr. Lai however does not shy away from the fact that there are some dishonesty offences committed in the last few years.

11.  As I found in this case, you defendants had gone equipped for the offence of burglary.  You both have lengthy records of offences for dishonesty; however, in view of the fact that the similar offence of burglary was committed some 10 years ago for D1 and more than that for D2, I am not going to enhance the sentence.

12.  In the circumstances, defendants, you will each be sentenced to 3 years’ imprisonment.