HKSAR v. NG KA MING, JOHN CARMEL

DCCC 629/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 629 OF 2013

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Reasons for Sentence

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1.  The defendant, Ng Ka-ming, John Carmel, pleaded guilty before me to one count of burglary.

2.  At around 4.44 am on 11 May 2013, PC11868 who was on anti-crime patrol, spotted the defendant carrying a computer bag walking furtively towards the officer.  The officer stopped the defendant and searched the computer bag.  The officer found one Notebook computer, one adapter, one indoor wireless telephone, one charger, one coins bag, one calculator, one stapler and some documents inside the computer bag.  The Notebook computer was password-locked and the defendant was unable to provide the password to login to the computer.  The officer arrested and cautioned the defendant.  The defendant admitted under caution that he had stolen the items earlier that day.

3.  Police investigation later located the owner of the items.  The victim was a chef of a restaurant at Olympian City 2.  The owner stated that at about 4.30 pm on 10 May 2013, he had placed his computer bag inside the staff changing room.  He left work at 9.20 pm and did not see if the computer bag was still there as his clothes were stored in another locker.  The staff changing room is located at a rear corridor of Olympian City 2.  The rear corridor can only be accessed by the public from the outside through an emergency door when Olympian City 2 is closed.  The staff changing room is usually locked.  There are three sets of keys to enter the changing room, one is kept by the owner while the other two are kept inside the restaurant.  At 8.30 am on 11 May 2013, the owner checked and confirmed that he was in possession of his key while the other two keys were inside the restaurant. 

4.  In a video-recorded interview under caution, the defendant admitted that he had entered into the staff changing room in Olympian City 2 through an emergency exit.  The door to the changing room was unlocked and he entered and found the computer bag.  As he was on route to sell the computer in Sham Shui Po, he was stopped and arrested by the police. 

5.  The defendant has a chain of criminal records since 1993.  He has one conviction for theft from vehicle, seven convictions for theft, one for attempted theft, one for tampering with motor vehicle and one for burglary.  

6.  Mr Chang told me in mitigation that the defendant had completed grade 9 to grade 10 in Vancouver, Canada.  Though the antecedent statement states that the defendant does not have a history of serious illness, Mr Chang told me that the defendant is in fact suffering from some serious psychiatric condition.  He has been suffering from depression for over 10 years and is still on antidepressants.  In the past, he had been admitted to Kwai Chung Hospital for a few months.  Mr Chang submits that the defendant has a long history of criminal convictions but most of the convictions were related to petty crimes. The convictions for theft were shop theft cases.  It is quite true that the defendant was convicted for burglary in 2004 and was sentenced to DATC.  Since then, he had not been convicted for any dishonesty-related offences. 

7.  The defendant is now 39 years old.  He was born in Hong Kong and is still single.  Mr Chang told me that defendant’s parents migrated to the United States in 1992 and the defendant decided to live his own life in Hong Kong.  He had worked as a hair salon worker for 10 years then a transportation worker for a few years.  He had worked as a warehouse worker for some time and he has been working as a restaurant worker shortly before his arrest in this case.  As said, the defendant has been suffering from some psychiatric condition and he is still on antidepressants regularly.  He started to abuse cannabis when he was 19, then he changed to heroin.  As one can see from the criminal record of the defendant, he had been to DATC on some occasions.  He was last sentenced to 6 months’ imprisonment in July 2012, he was released in October 2012.  In other words, he committed the present offence about 6 months after his release from prison. 

8.  At the time of the offence, the defendant was living at his friend’s place in Tai Kok Tsui.  On the night in question he had taken some sleeping pills but was still unable to sleep.  He went out and walked around in the area, he noticed the shopping arcade in question, he found out that the back door was still open, he walked in and entered the staff room and found the computer bag and took it.  He was stopped by the police.  He made frank admission to the police and has been cooperative throughout the police investigation.

9.  Mr Chang handed up a letter written by the defendant.  The defendant states he is remorseful for what he had done and he asks for a lenient sentence. 

10.  Mr Chang draws my attention to two authorities, i.e. HKSAR v Cheung To Ming Cr App 406 of 2005, the other one is HKSAR v Khan Asif [2010] 4 HKC 31.  Mr Chang draws my attention to paragraph 11 of Cheung To Ming.  The Court of Appeal referred to the decision in HKSAR v Sim Ka Wing, unreported, CACC450 of 2000 which states, paragraph 9:

“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 would 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 burglary 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 a case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value.”

11.  In Khan Asif the Court of Appeal reiterates in paragraph 31 of the Judgment that the standard sentence after trial for burglary of non-domestic premises is 2½ years’ imprisonment citing HKSAR v Sim Ka Wing.  On the facts of the case, the Court of Appeal decided that a sentence of 18 months’ imprisonment was appropriate as the Court of Appeal found that the entry into the premises was minimal.  The entry can be described as “popping one’s head in through the windows” kind of burglary.  Mr Chang urges me to adopt a lower starting point as there was no premeditation and no planning on the part of the defendant.  The fact that the defendant did not carry any house‑breaking instrument bears that out.

12.  In sentencing the defendant, I have borne in mind the facts of this case and all the matters urged on the defendant’s behalf by Mr Chang.  I am aware that the proper starting point for burglary of non-domestic premises is 2½ years’ imprisonment where the offender is a first offender and of full age.  I agree with Mr Chang that a lower starting point is appropriate in this case but the facts in this case are more serious than the facts in Cheung To Ming.  The defendant entered a shopping arcade in the small hours of the night, he then entered into a staff changing room and stole therein.  On the facts of this case, a starting point of 21 months’ imprisonment is appropriate. 

13.  The defendant is a repeated offender, he had many dishonesty-related convictions in the past.  I further increase the sentence by 3 months on account of his criminal records.

14.  The defendant is entitled to one-third reduction for his guilty plea.  Therefore the sentence is reduced to 16 months from a starting point of 24 months. For the reasons given, I sentence the defendant to 16 months’ imprisonment.