HKSAR v. KU YUEN CHI

DCCC 874/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 874 OF 2009

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Reasons for Sentence

1.  The defendant pleads guilty to 1 charge of burglary of a residential premises.

2.  On the evening of 10 July 2009 the defendant was stopped by the police in the Shamshuipo area. When searched, he was found to have a wallet containing the identification document of a female. When arrested and cautioned the defendant admitted to have stolen from a premises, which he burgled just a few hours ago whilst the victim was asleep therein.

3.  Subsequent checks confirmed the victim to have left the door of her Shatin flat unlocked when she went to sleep. The victim confirmed her handbag with its contents and her jewellery box were missing from her home.

4.  Most of her stolen properties were recovered from the defendant save and except a few items.

5.  The defendant was born in 1964 and is now 45 years of age. He has 13 previous convictions of which 2 were for robbery (in the 1980s), 4 for simple drug possession and 1 for drug trafficking (in the 1990s). He had a total of 7 previous convictions of burglary. His last conviction for burglary was recorded on 8 December 2006 for which he received a term of 2 years and 8 months imprisonment.

6.  His solicitor mitigated on his behalf to say the defendant remarried in the mainland in 2005 and is now a father of two 3-year old twins. His twin son is suffering from mental disability. The defendant implored upon court to extend leniency to him. In mitigation, defence solicitor said the defendant was no more than an opportunist who saw the door of the victim’s premises left ajar and he entered to steal therein. No weapon and no violence was resorted to.

7.  Defence cited the judgment of Mr. Justice Stuart-Moore, VP of Cheung To Ming CACC-406/2005 (27 March 2006) to suggest the court should deviate from the usual sentencing tariff when a defendant entered a premises as an opportunist when the door to the flat was left ajar (be it through the acts of previous burglars or through the neglect of the property owner). In Cheung To Ming, the illegal immigrant entered the kitchen of an Education and Reserve Centre in Mai Po, stole nothing but just consumed 2 packets of instant noodle therein. It was in those exceptional circumstances that the Vice-President accepted an 18 months term for burglary coupled with a 15 months imprisonment term for illegal remaining to be appropriate.

8.  In the Chinese culture it was the Confucius teaching that citizens should be allowed to leave the doors open at night without the worries of having thieves stealing therefrom. One certainly hopes, in cause of time, this can be achieved.

9.  The usual tariff for sentence for burglary of domestic premises is a term of 3 years imprisonment. A recidivist is expected to receive a higher jail term to mete out a deterrent effect.

10.  The defendant was sentenced to a total of 3 years consecutive terms in December 2006 for 4 counts of burglary and 1 count of possession of prohibited weapons in DCCC-932/2006. That did not seem to have a deterrent effect on him. I really ought to adopt a starting point higher than 3 years to send out a clear message to the defendant. Without considering the mitigating circumstances of the defendant, I would have considered a term of 3 ½ years jail term justified bearing reference to the background of the defendant.

11.  I accept no violence was used to gain entry to the premises. The victim was asleep within the premises during the burglary. She was thus not under apprehension of unexpected intrusion. The majority of her stolen properties were recovered. Despite the fact that the defendant was a clear recidivist, I do not escalate the starting point for sentence.

12.  I adopt the usual 3 years starting point for sentence. Giving him due credit for his plea of guilty indicating remorse I accord him 1/3 discount and impose a term of 2 years imprisonment.