In respect of the charge of burglary, this occurred on 31 July 2021 at Flat G, Greenview Court, Nos. 7-8 Ching Lin Terrace in Kennedy Town. The defendant was captured in the vicinity on CCTV and seen fleeing the scene with a shoulder bag taken from Flat G. When he was arrested on 3 August 2021, he admitted entering the flat and stealing US$200, credit cards, a China ID card, shirt, a baseball cap and shoulder bag.
The defendant left Flat G on 31 July and entered an adjacent flat at No. 9 Ching Lin Terrace. The occupant of the flat was inside alone. She found the defendant in her backyard and quite naturally she screamed. The defendant then punched the left side of her face and told her to shut up. He held a screwdriver in his hand and demanded money but she only had $50 in her purse which he took in any event. He then pushed the occupant into her bedroom and forced her to squat whilst he searched her wardrobe but stole only an empty wallet.
In respect of both crimes, the defendant maintained he was unemployed and had no money. He had disposed of most of the items and had exchanged the US dollars and spent it, although some cash was recovered upon his arrest three days later.
The defendant is a 49 year-old Hong Kong resident. He was educated up to Secondary 1. He has a criminal record covering a range of offending dating back to January of 1999, which was his first offence, a burglary for which he received a probation order of 18 months.
He was next dealt with for burglary in 1996 and was given a sentence of 2 years’ imprisonment. Very shortly after that sentence and presumably while serving that sentence, he was also dealt with for robbery in the High Court and was given a sentence of imprisonment of 9 years along with other matters, including a burglary which was to be served concurrently.
His next offence of robbery was in 2011 when he received a sentence of imprisonment of 12 years. He has therefore spent a significant amount of his adult life behind bars and appears to have changed his criminal offending in recent years to being involved in gambling.
Mr Chan submits that after his last run in with police, the defendant turned a new leaf. He gained work with the MTR Corporation, earning HK$30,000 a month. He entered into a relationship and got engaged and settled down, inviting his future parents-in-law to live with him and his fiancée.
Unfortunately, in late 2019, his fiancée’s father was diagnosed with a brain tumour, which required surgery and substantial medical fees before he sadly passed away in October of 2022. During his illness, the father was placed in a nursing home, which added considerable expense.
During this very difficult phase for the family, his fiancée’s mother deteriorated and was diagnosed with dementia. As a result, she also needed care in a nursing home where she been since June 2020. The pressures upon the couple led to reduced performance at work and the defendant was laid off. In those circumstances, he returned to his previous ways.
I accept that the offending under Count 1 took place in the daytime with no one present and nothing of high value was taken, but some of the items were discarded which would have caused considerable inconvenience to the occupants as well as concern about their having their privacy invaded.
The leading case for domestic burglary is HKSAR v Lau Pang [2004] 3 HKLRD 565, which suggests that 3 years is the appropriate starting point even where the defendant was breaking into someone’s home to steal food to eat.
As for the 2nd count, that is far more serious. Both HKSAR v Ng Kai Kwong, CACC 198/1999, and HKSAR v Mo Kwong Sang [1981] HKLR 610 apply. The issue is whether that starting point of 5 years should be reduced to reflect the fact that the screwdriver was not used or intended to be used in the manner it was in Ngai(Ng?) Kai Kwong.
Mr Chan submits the sequence of events suggests that the screwdriver was to be used as a tool, not a weapon. It was intended to use it to break in and not to threaten. And although the defendant hit the victim, he never brandished the screwdriver so as to suggest that it was a weapon. But the victim was physically assaulted and she must have been terrified during the whole ordeal such that whilst there was no weapon, this offending does attract a starting point of 5 years.
However, the court notes that the defendant had made significant effort to set his life on the correct path and had held down a good job for a substantial period of time whilst attempting to meet the needs of his fiancée and the financial needs of her father and mother. The passing of her father and the dementia diagnosis of the mother must have had a profound effect upon them both. Unfortunately, this is to some extent balanced out by the defendant’s truly poor criminal record.
Upon Count 1, I adopt a starting point of 3 years, which will be discounted by one-third to reflect your plea of guilty at the first opportunity to 2 years’ imprisonment. On Count 2, the starting point will be 5 years’ imprisonment, discounted by one-third for your plea of guilty to 3 years and 4 months.
This offending was carried out at the same time and in adjacent buildings and so was a course of events which does not warrant a consecutive sentence. As a consequence of what has been said on your behalf and your sincere attempt to put your previous offending behind you, I will not enhance this sentence because of your previous offending. You will go to prison for 2 years on Count 1 and for 3 years 4 months on Count 2, which will be served wholly concurrently with Count 1.
The total sentence therefore is one of 3 years and 4 months.