HKSAR v. CHIM CHIN KWAN, JAMES

DCCC 531/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 531 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to Charge 1, the theft of two genuine bank cards, and pleaded guilty to Charge 2, burglary of a room on a rooftop in Yau Ma Tei.

2.  The facts are as follows.  The burglary occurred on 23 April this year.  The victim lived in a room on a rooftop at 44 Kwun Chung Street, Yau Ma Tei.  This room looks like an add-on to the roof, perhaps an illegal structure.  I have seen photographs of the area and the room itself.  There is no lock on the iron grille or wooden door.  They were damaged when the victim moved in.  He had never had them repaired, and the victim told the police that he would block the door from inside when he was asleep.

3.  On the morning of the 23rd at about 4 am the victim heard a noise whilst in bed.  He looked up to see the defendant in his room (there is only one room to this premises) holding a torch.  When the defendant saw the tenant, he ran.  The victim chased the defendant down the stairs of the building, caught him, and then called the police.

4.  Under caution, the defendant told the police that he thought he would enter that room to see if there was any scrap he could collect to sell.  He saw the door was broken.  He pushed it open in order to go in to have a look.  He assumed that the room was vacant because the door was broken and unlocked.

5.  Later, the police searched the defendant's bag and saw two bank cards.  Those bank cards were issued by China Construction Bank.  The defendant told the police that he had picked them up earlier and was going to try his luck with an ATM machine by guessing PIN numbers.

6.  I have been told the bank confirmed these cards are genuine, and there is no evidence the defendant used them illegally.  The prosecution accepts that from the evidence they have, it is a theft by finding.

7.  The defendant is 42 years old.  He is not a man with a clear record.  He has two previous convictions for burglary in 1991 and 1992.  He was 17 years old at the time.  He also has 10 previous convictions that relate to offences of dishonesty.  His last conviction was in March 2012, when he was sentenced to 6 weeks' imprisonment for handling stolen goods.

8.  The defendant is married, with two children, a 13-year-old daughter and a 7-year-old son.  I have been told in mitigation that when the defendant was arrested this year in April, he was employed and working two shifts as a cleaner, earning approximately $14,000 a month in total.  I have seen proof of one job.  He and his family rent premises for $5,000 a month.  I have seen the tenancy agreement.  I have also been told that the defendant's son is ill.  In 2012 he was diagnosed with a heart problem.  I have seen appointment slips from Queen Elizabeth Hospital for his son, aged 8, in the Paediatric Cardiology Department.  I have been told that this is why the defendant has not committed any offence since 2012.  Because of his son's illness, he knows he has responsibilities and has been trying to support his family as best he can.  I have been told that the medication that they have to pay for is expensive, and I have also been told and seen some documents today that show the son has been diagnosed recently with ADHD.  He has yet to be prescribed medication, but that is to come.

9.  The defendant's wife, who is in court today, does not work because of the two children.  There is therefore not a lot of money left at the end of every month, and in order to supplement that, the defendant, in the area he lives, looks for scraps to sell such as cardboard, cans and paper.  I was told in mitigation that that was why, after the end of one shift, he walked up this building to the rooftop to look for scraps.

10.  On the last occasion I adjourned to today for documentary proof of all the mitigation put forward.  I have seen documents today that back up almost all of the mitigation.  The defendant or the defendant's wife could not get hold of the second employer for proof of that income.

11.  Defendant, please stand up.  In essence, I accept the mitigation put forward.  I have also considered your plea of guilty.  You are not a man with a clear record, but I can see that your last serious offence of burglary and robbery was in 1992, when you were young, and sent to training centre.  Your last conviction was over four years ago.  This does tally with the mitigation that you are trying to lead a law-abiding life and support your family.  Lastly, I accept as possible that you thought the premises was not necessarily a dwelling or a residence that was occupied at that moment because the door was broken and unlocked, and also perhaps because of its makeshift, I am sure illegal, nature on this rooftop.

12.  In such a scenario, the courts can take a more lenient approach instead of the normal and usual 3-year starting point for a burglary of domestic premises.

13.  Taking into account mitigation I accept, I will, for the burglary, Charge 2, take a starting point of 18 months' imprisonment.

14.  You pleaded guilty.  You are entitled to a discount of one-third.  After that discount is applied, for the burglary, you are sentenced to 12 months' imprisonment.

15.  For theft, Charge 1, I accept it is a theft by finding.  I take a starting point of 6 months' imprisonment.

16.  You pleaded guilty.  You are entitled to a discount of one-third.  After that discount is applied, for Charge 1, you are sentenced to 4 months' imprisonment.

17.  I have considered the totality principle and the different nature of both offences.  I will order 1 month of Charge 1 to be served consecutively to Charge 2 and the balance concurrently.

18.  Therefore, total sentence for both charges is one of 13 months' imprisonment.  Do you understand that sentence?

DEFENDANT: Yes, I do.