HKSAR v. MA WEI CONG

DCCC 797/2021

[2022] HKDC 575

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 797 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of burglary of a non-domestic premises which was a school. The facts admitted by the defendant can be summarised as follows.

2.  On 5 March 2021 at around 6 pm, a teacher of the school left Room 106 on the 1^st floor of the school (the “room”)  with one of the windows slightly opened.

3.  On 6 March 2021 at around 12:40 pm, when she returned to the room she found four laptop computers and one iPad were missing.  The estimated value of the stolen property was about HK$25,120.  The case was reported to the police.

4.  The police lifted the defendant’s fingerprints from a window frame in the room.  CCTV footage at the school captured on 6 March 2021 that at around 3:23 am, the defendant entered the room by climbing through a window. 

5.  On 28 June 2021, the defendant was arrested by the police.  He admitted that he climbed into the room through an open window and took the stolen property.  He had sold all the stolen property for HK$4,000.

6.  I am told that the defendant is now 37 years of age and has been separated with his wife since 2017.  He has a 10-year-old daughter who currently lives with his ex-wife.  He has been unemployed since July 2020. 

7.  The defendant has three previous convictions which are not similar to the present offence. 

8.  In mitigation, defence counsel submits that the defendant was co-operative with the police and admitted his wrongdoing under caution.   And he pleads guilty at the first available opportunity.

9.  He committed this offence as he became unemployed in July 2020 and was unable to find meaningful employment during the pandemic.  He committed the offence out of momentary greed and financial relief. 

10.  Defence counsel submits that the defendant discovered a security loophole when he passed by the premises.  The absence of any tools of concealment such as a mask and glasses demonstrates the lack of any premeditation by the defendant.  She asks the court to accept that this case is at the lower end of the spectrum for burglary cases, and to consider this as an opportunistic burglary or sneak-in theft adopting a lower starting point. 

Sentencing consideration

11.  In passing sentence, I have carefully considered the oral and written submissions of Ms Ho, counsel for the defendant. 

12.  The present case was a burglary of a non-domestic premises.  The normal starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months’ imprisonment. 

13.  Defence counsel submits that the burglary in the present case was opportunistic when the defendant walked by the premises discovering a security loophole. 

14.  I do not agree that this was an opportunistic burglary.  From the photographs produced by the prosecution, it can be seen that the front of the school was facing the street while the back of it faced a hill slope.  The relevant window of the room through which the defendant climbed into the room was facing the slope.  The defendant had to enter the school premises from the slope. 

15.  Moreover, the offence took place in the small hours of the morning.  It would be unlikely that the defendant only committed the offence out of momentary lapse of judgment when he suddenly discovered an unlocked window or a security loophole of the school. 

16.  I have considered the Court of Appeal and District Court cases referred to by defence counsel.  In my view, the facts of the present case are quite different from the cases cited.  I have also looked at that the value of the stolen property in this case which is not small.  They are usual equipment one can find in a school.

17.  In all the circumstances of the case, I am satisfied that the usual starting point of 2 years and 6 months’ imprisonment is appropriate.

18.  Apart from his timely guilty plea, there are no other mitigating factors.  Giving the defendant full credit for his timely guilty plea, he is therefore sentenced to 20 months’ imprisonment.