HKSAR v. NG MAN TANG

DCCC 358/2018

[2018] HKDC 1126

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 358 OF 2018

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Reasons for Sentence

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1.  The defendant has pleaded guilty today to one charge of burglary. On 28 February this year he entered part of a building in Cha Kwo Ling Tsuen.

2.  At about midnight he entered the ground floor of a two-storey squatter structure on Cha Kwo Ling Main Street in Kwun Tong.  The ground floor of the two-storey structure had a toilet and an open room, and there was a staircase that led to the 1st floor, and on the 1st floor were the bedrooms and another bathroom - essentially where the family lived.  On that night they were asleep upstairs.  At the staircase there was a metal gate which was secured by a lock.  The only thing that separated this lower-level room and the street was a transparent plastic curtain.  There was no door to this open room on the ground floor.

3.  On the morning of the 28th, the main occupant was preparing breakfast in this open room when he discovered about six eggs were missing from the fridge.  He had installed CCTV and when he checked the footage he saw that the defendant had entered that room from the street through the plastic curtain at about midnight and shone a torch around that room before opening the fridge and taking eggs before leaving.

4.  Several days later, that same witness saw the defendant nearby and followed him, before calling the police.  The defendant in fact lives in a building almost next door.  The police arrived and, not long after, intercepted the defendant as he left his own building.

5.  Under caution, the defendant admitted that he had entered that lower-level room through the plastic curtain several nights earlier and he had taken eggs from a refrigerator and eaten them that same night because he was hungry.

6.  Later at the station, the defendant made the same admission under caution and gave the police more details - essentially a full admission.

7.  The defendant is 59 years old and not a man with a clear record.  He has 15 convictions, of which five of those are burglaries. His first burglary offence was in 1989, when he was fined $1,000.  His last conviction was in 2016.  The other convictions are, in the majority, drug-related convictions and clearly the defendant has a drug problem that goes back as far as 20 years ago.

8.  I have heard that the defendant is now divorced, but had a family which did come to Hong Kong from Mainland China, and from his record it can be seen that there was a gap of about six years where he did not commit any offences.  Mr Wong explains that during that time he did try his best to work hard to be a good father and husband and stay out of trouble.

9.  Mr Wong has said all he can on behalf of the defendant in mitigation.  He has asked me to look at a sketch showing a clear layout of the ground floor of the premises.  He has asked me not to consider any aggravating factors despite the defendant’s previous record and despite the fact he entered these premises at night, when the occupants were asleep upstairs. 

10.  It is very clear that the family were asleep upstairs, but the upstairs were secured by a door and lock, whereas downstairs was open to the street.  What was between downstairs and the street was only a transparent plastic shower curtain. 

11.  I do not intend to find that there are any aggravating factors I should take into account.  What was in this room was a fridge, cupboard, washing machine and table.  I have looked at the layout and the fact there was no door to this room from the outside.  I also considered the fact that the defendant was alone and there were no signs of ransacking. Moreover, all he took was eggs, valued at $20. I accept he was an opportunistic burglar.

12.  I have referred myself to a case, Hong Kong SAR v Sim Ka Wing, CACC 450/2000, where the Court of Appeal observed that the conventional starting point for burglaries can be lowered in the case of an opportunistic burglar.

13.  Mr Wong has referred me to another Court of Appeal case, Hong Kong SAR v Law Tin Yam CACC 258/2010, where that appellant ransacked a cubicle in a flat where the occupant left it unattended and unlocked - there was no lock.  That appellant stole a packet of cigarettes.  There, the Court of Appeal said the following: 

“So what this amounted to was an invasion of a home, albeit a cubicle, with a view to theft, which is of course sternly to be discouraged, which is why a term of imprisonment inevitably follows; but on the other hand this was a casual entry into a neighbour’s cubicle when other people were about and the theft of but one packet of cigarettes by a defendant in his mid-40s on social security. Sentencing guidelines must never obscure the individual facts and justice of a case and in this particular instance we were of the view that an appropriate starting point was manifestly high.”

14.  In that authority, the Court of Appeal, instead of a 3-year starting point, found an appropriate starting point of 15 months appropriate.  I note that the defendant in that case, although he had previous convictions, had none for burglary, unlike the defendant in this case.

15.  As I have just said, the conventional starting point for a burglary of a domestic premise where there are no mitigating or aggravating factors is one of 3 years. 

16.  However, as I have said, I will find this defendant an opportunistic burglar. 

17.  I will also find that the design of this domestic premise is such that the true domestic part of the witness’ home is upstairs and secured by lock and key and a door.  The defendant did not try and go upstairs.  The lower level is still part of their home, but perhaps, unlike most homes, it can be described as a separate part and easily accessible to opportunistic burglars like the defendant because of its plastic curtain.

18.  I also take note of the fact that he only stole six eggs worth $20.

19.  Having considered all those factors and the authorities I have mentioned, I will depart from the conventional starting point for this burglary. 

20.  I will take a starting point of 18 months, reduce it by 6 months for the defendant’s plea. 

21.  After that reduction, the defendant is for this offence sentenced to 12 months’ imprisonment.