DCCC1124/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1124 OF 2010

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Reasons for Sentence

1.  The defendant faces 3 charges. Charge 1 is for burglary, charge 2 for attempted burglary and charge 3 for burglary. All 3 premises involved in the charges are non-domestic premises.

Facts

Charge 1

2.  A bridal gown shop located in Cheung Chau in charge 1 was found to have been burgled on 21^st August 2009. The ventilation fan at the rear part of the shop was removed and dumped at the toilet inside the shop, leaving a small fan hole of the size of about 30x30cm. The cashier situated at the front part of the shop was damaged and cash of approximately HK$250, a game console (HK$1,200) were stolen. 2 screwdrivers and a bent spoon, not being part of the property in the shop were found lying next to the cashier. Palm prints were lifted and sent to be identified.

Charge 2

3.  On the morning of 21^st August 2009, the ventilation fan in the toilet of the fruit shop in charge 2, also situated in Cheung Chau, was found to have been removed. The fan had fallen onto the floor inside the toilet, leaving a small fan hole of the size of about 20x20cm. Nothing was stolen from the fruit shop.

Charge 3

4.  The hair salon in charge 3 is situated in Cheung Chau. The owner of the shop left at 7:30pm on 30^th August 2009 with doors and windows secured. She returned at 10:30am on 1^st September and noticed that the window grills of the shop were broken and that hair products were scattered around on the floor. She then found that the drawer used by her as cashier had been prized open and cash of around HK$30 was stolen from the plastic container placed inside the drawer.

Arrest

5.  The defendant was arrested in relation to another matter on 15^th July 2010. His fingerprints including his palm prints were taken as part of the routine arrest procedures.

6.  On 24^th August 2010, the prints of the defendant were found to match with those lifted in the shop in charge 1.

7.  D was arrested on 27^th August in Cheung Chau. Under caution, he admitted to be responsible for several burglaries which happened in 2009 and they included burglaries of a bridal gown shop, a salon and another shop details of which the defendant had forgotten.

8.  In the subsequent video recorded interview, the defendant stated that in relation to the bridal gown shop, he admitted to kicking open the ventilation fan and going into the shop through the fan hole. He then used a knife he found in the pantry to remove the aluminum door in order to gain entry into the front part of the shop. He stole $250 and a game console therein. He said he had spent the cash and sold the console for $400.

9.  In relation to the shop in charge 2, the defendant admitted to breaking the ventilation window with intent to enter the shop to steal. However he did not manage to gain entry into the shop because the fan hole was too small for him to get through.

10.  In relation to the salon, the defendant admitted to using a key to prize open the window of the shop. He then climbed through the window to gain entry into the shop to steal cash of about $30. He stated that he had spent all the money.

Previous

11.  The defendant has a clear record.

Mitigation

12.  The defendant is 31. He is educated up to F.4 level. At the time when he was arrested, he was working as a delivery worker, earning about $6,500 per month.

13.  The defendant is divorced with a 12 year old daughter and 5 year old son. The defendant was divorced in 2010 and he is responsible for taking care of their elder daughter while the younger son is taken care of by his former wife.

14.  The defendant lives alone in Cheng Chau, in a place with no water and electricity since he could not afford to pay the bills. The defendant’s daughter would sleep in the defendant’s parents’ home while the defendant himself would sleep in the dark.

15.  At the time of the offence, the defendant had just lost his job due to the closing down of his boss’s company. The defendant still had to keep up with the payment of $3,000 per month for the upkeep of his daughter. He tried to apply for social assistance but not successful. In the end, he foolishly committed the offences.

16.  Mr. Lam pointed out that the facts of the 3 charges are not the worst of its kind. There was no violence involved and the defendant had checked to make sure that the flats were empty before he entered. The value of the goods stolen in charge 1 and 3 was very small. The defendant only got $680 from the offences.

17.  After the offences, the defendant was very scared, ashamed and remorseful. He was able to quickly find a job as a delivery worker again and had been working quite well before his arrest in 2010. Each month he continued to contribute $3,000 towards the upkeep of his daughter. The defendant was cooperative after his arrest and he confessed to all 3 charges. The defendant’s family are all supportive of the defendant. His mother who is 64 years old is receiving medical treatment and wishes for leniency for his son.

18.  3 letters in mitigation were handed up. One from a District Councillor, one from the defendant’s daughter, and one from the defendant’s last employer.

19.  Mr. Lam rightly pointed out that the starting point for non-domestic burglary is that of 2.5 years’ imprisonment. Mr. Lam submitted that the offence were committed in quick succession of one another and the sentences should be made wholly concurrent. It is also Mr. Lam’s submission that in view of the defendant’s clear record, his guilty plea and unlikelihood to reoffend, the court should consider a suspended sentence.

Sentencing Guidelines

20.  Sentencing guidelines in relation to burglary of a non-domestic premises is 2 and a half years’ imprisonment.

Sentence

21.  I have heard the mitigation put forward on behalf of the defendant and I find that there is nothing to allow me to depart from the sentencing guidelines.

22.  In relation to charge 1, I will adopt a starting point of 2.5 years imprisonment, reducing it by one-third in recognition of the defendant’s plea of guilty, and sentence the defendant to 20 months’ imprisonment.

23.  In relation to charge 2, although this is an inchoate offence, I find that the sentence should not differ to a completed offence. I will therefore also adopt a starting point of 2.5 years imprisonment, reducing it by one-third in recognition of the defendant’s plea of guilty and sentence the defendant to 20 months’ imprisonment.

24.  In relation to charge 3, I will adopt a starting point of 2.5 years imprisonment, reducing it by one-third in recognition of the defendant’s plea of guilty, and sentence the defendant to 20 months’ imprisonment.

Totality

25.  The defendant committed charge 1 and 2 at about the same time and in the same locality. He then waited another 10 days before committing the 3^rd offence, but also in the same locality. The offences are all separate offences committed at different times. If we ignore the principle of totality, the sentences can be ordered to run consecutively. Yet to do so would lead to a total sentence of 5 years’ imprisonment after plea, which is far too high a sentence. However, one must of course not ignore the fact that the defendant committed multiple burglaries within a short time span in the same area.

26.  I have noted the defendant’s previously clear record and the circumstances causing him to resort to burglary. I was told that the defendant had made sure that no one was inside the shops before entering, making sure that he did not run into anyone. There are no aggravating factors in any of the 3 charges.

27.  Therefore, having taken into consideration the principle of totality, and the overall circumstances of the whole case, I will order that 5 months of the 2^nd charge and 5 months of the 3^rd charge to be served consecutively to the sentence of charge 1, the rest to be served concurrently. Total sentence is 30 months’ imprisonment for the 3 charges.

28.  There are no exceptional circumstances to warrant a suspending of the sentence.