HKSAR v. LAM SEUNG HO

DCCC 1006/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1006 OF 2010

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Reasons for Sentence

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Charge and facts

1.  The Defendant pleads guilty to burglary of a village house situated in Tsing Shan Tsuen, Tuen Mun (“House”).  The House was at the end of a row close to the hillside.  The house owner had locked the doors and windows but returned a few hours later in the same day only to find a number of items missing.  According to the photo album marked M1, the House was fully furnished with presentable artifacts and audio-visual appliances.  A CCTV hard disc worth $7,000, a Bally wallet worth $4,000, coins making up a total of US$4 and HK$200 respectively, and 3 packs of cigarettes were taken.  The estimated value was HK$11,345 in total.  Those items were not recovered. 

2.  Subsequent investigation by the police revealed signs of prizing on the front window and the Defendant’s fingerprints on 2 containers where the coins had been put. 

3.  Half a year later, the Defendant was arrested for burglary.  He denied the offence and attributed his fingerprints to his having picked up items in the containers occasionally placed outside the House. 

Defendant’s personal circumstances and mitigation

4.  The Defendant is now 39 years of age.  He has received secondary education.  His wife is a nurse.  His mother suffers serious diabetes.  He has lived near the House for 15 years.  He has 4 convictions for evasion of liability and 1 conviction for theft of bicycle.  There is nothing similar to burglary. 

5. I am told that he committed the present offence out of an adventurous mood so that expensive properties in the House were intact. While his counsel seeks very much to persuade me that, based on the house owner’s police statement the House was ordinarily not occupied by anyone, the extract of Archbold 2011, 22-87, clearly put forward the established principle that the likely possibility of the premises being occupied is an aggravating feature. In short, it seems to suggest that the starting point is applicable to domestic premises even not likely possibly to be occupied. His counsel agrees with this observation.

6.  His counsel also submits that the prosecution case is weak as the fingerprints were only found on the containers, which were movable items.  I do not agree.  It is not in dispute that the house owner has denied having ever moved them outside the House.  In my judgment the prosecution case is strong. 

Sentencing guidelines for burglary

7.  In R v CHAN Yui Man, Cr App 36/1988, the Court of Appeal held that in burglary of domestic premises, 3 years was about the proper starting point for a first offender of full age. This was followed in R v Chan Wing Ching Cr App 100/1991, R v Luk Wai Kit Cr App 99/1992, and R v Wong Man Cr App 372/1992.

Sentence I pass

8.  The house owner had lost over HK$11,000 worth of properties.  There is nothing to warrant a reduction from the usual starting point.  I give a one-third discount for the plea of guilty.  There are no other mitigating factors.  I sentence him to imprisonment for 2 years.