HKSAR v. MOK TSZ KIN

DCCC 631/2019

[2020] HKDC 273

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 631 OF 2019

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to two charges of burglary, contrary to section 11 of the Theft Ordinance[1].

2.  Full particulars of the offences are set out in the facts admitted by the defendant today. 

3.  In summary Mr Wong lived with his family in Flat C on the 9th Floor of Gain Yu Building, No 104 Wharf Road in North Point.  Usually Mr Wong left the spare key to the flat in a shoebox outside the front door. 

Charge 1

4.  At around 6 p.m. on 29 March 2019 Mr Wong discovered the key was missing.  CCTV cameras inside Gain Yu Building revealed that the defendant had entered the building by the main gate at 3:31 a.m. that morning and left at 3:52 a.m.

5.  Photographs have been submitted to court showing the shoe box in which Mr Wong put the spare key outside the front door of his home.  The key was in the shoe box with the name “NEO”.  

Charge 2

6.  At around 4:18 a.m. on 31 March 2019 Mr Wong and his wife were at home sleeping. Mr Wong and his wife suddenly woke up.  The bedroom door was open and there was a light shining in the living room. 

7.  Mr Wong got up and heard the footsteps of someone leaving the flat by the front door. 

8.  Mr Wong checked the flat and found nothing was missing. 

9.  CCTV camera inside the bedroom revealed the defendant, rummaging in the bedroom at 4:10 a.m. that morning while using the light of a mobile phone.

10.  The left thumb print of the defendant was found on the outside surface of the front door of the flat.

Arrest

11.  The defendant was arrested on 9 April 2019.  In a house search of the defendant’s residence the police found the spare key to Mr Wong’s flat and the clothing worn by the defendant on 29 March and 31 March.

12.  Under caution and in a subsequent video recorded interview the defendant, inter alia, admitted he stole the key on 29 March which he used on 31 March to enter the flat to search for valuable items to steal. 

Mitigation

13.  In passing sentence, I have carefully considered the oral and written submissions of Ms Lo, including that the defendant committed the offences due to financial worries [2].   I have read the mitigation letter written by the defendant in which he says he will not go astray again and wishes to take up the responsibility of looking after his family.

Starting point

14.  The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.

15.  Ms Lo submits a lower starting point is appropriate for the first burglary which she describes as opportunistic[3].

16.  I do not agree the burglary was opportunistic. The defendant did not pass by an open door or vacant premises and steal food or items of little value[4].  The defendant entered Gain Yu Building, which was not where he lived, in the early hours of the morning, clearly with the intention to steal.    

17.  I am however satisfied a lower starting point is appropriate for the first burglary by reason of the fact the defendant did not enter any residential premises to steal the key. 

18.  I am satisfied the appropriate starting point for charge 1 is 12 months’ imprisonment and for charge 2 is 3 years’ imprisonment.   

19.  The second burglary was of occupied premises and took place in the early hours of the morning when occupants were highly likely to be at home[5].  Fortunately, there was no confrontation.  I am satisfied an enhancement of 3 months’ imprisonment to 3 years and 3 months’ imprisonment is appropriate. 

20.  The defendant has three previous convictions for burglary in 2013 and 2014.  Since his release from prison in 2015 he has only committed one further offence of loitering in 2017[6]. In the circumstances I do not further enhance the starting point by reason of the defendant’s previous convictions. 

21.  Giving the defendant full credit for his pleas of guilty reduces the sentence on charge 1 to 8 months’ imprisonment and on charge 2 to 2 years and 2 months’ imprisonment.

Totality

22.  Although both offences were committed on different days taking into account the two offences are connected I am satisfied concurrent sentences are appropriate. 

Sentence

23.  The defendant is convicted and sentenced as follows:

Charge 1 – 8 months’ imprisonment;

Charge 2 – 2 years and 2 months’ imprisonment.

I order the sentences to be served concurrent to each other.  The total sentence to be served by the defendant is 2 years and 2 months’ imprisonment.

[1] Cap 210.

[2] See §4-6 of the skeleton submissions for mitigation.

[3] See §12 of the skeleton submissions for mitigation.

[4] See for example HKSAR v Cheung To Ming [2006] 2 HKLRD 260; HKSAR v Chau Man Ying CACC 439/2011 and HKSAR v Hai Chung Po CACC 115/2013.

[5] See HKSAR v Tong Fuk Sing [1999] 3 HKC 332 and HKSAR v Song Jianhua CACC 362/2006. 

[6] See §f of the antecedent statement.