HKSAR v. NG KA MING

DCCC 181/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 181 OF 2015

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REASONS FOR SENTENCE

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1.  The defendant (male)(aged 41) appeared before me this morning and pleaded guilty to a single charge of “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.  The particulars of offence averred that the defendant had between 27 October 2013 and 28 October 2013 sneaked into a village house which is known as Ground Floor, No 2 Chung Uk Tsuen, Tuen Mun, New Territories, and stole therein properties which are more particularly described in the particulars offence.   According to the Summary of Facts which he had admitted, the total value of the stolen properties was about HK$200,918.

The facts

3.  According to the Summary of Facts, the occupant (PW1) of the premises went out for dinner at about 5 pm on 27 October 2013 after locking the door with a padlock.  A few hours later, at around 1 am on 28 October 2013, PW1 returned to the premises and found the padlock missing. Signs of ransacking inside the premises were noticed by PW1.

4.  Upon checking, he confirmed that a large number of valuable properties were stolen including cash of HK$75,000 and also cash of other currencies; there were also five rings, one pair of earrings, one pendant, two necklaces and three wrist chains, one watch, other personal belongings including handbag, wallet and some expensive Chinese medicines and also personal belonging including passport, birth certificate and bank passbook were also missing. 

5.  A report was made to the police.  Later, a consumed pack of chrysanthemum tea together with a straw was found on the top of the bedside table in the bedroom of the premises.  As PW1 confirmed that this packet of drinks did not belong to him.  It was seized as exhibit and sent to the government laboratory for analysis.

6.  A DNA sample was found on the straw and taken from it subsequently.  According to the government chemist’s DNA report, the DNA sample taken from the straw matches with the defendant’s DNA in criminal record database. 

7.  The travel index check records also indicated that the defendant was within Hong Kong on 27 October 2013.

8.  Defendant was a complete stranger to PW1 and therefore defendant entered the premises as a trespasser.

9.  On 28 August 2014, defendant was intercepted in the street by police officers.  He was immediately arrested and cautioned for the offence of burglary after his identity and his wanted status was revealed. He denied the allegation.

10.  On the next day, a house search was conducted by the police inside his residence in Tuen Mun but none of the stolen properties were recovered. 

11.  On 12 September 2014, a buccal swab was obtained from the defendant by the police with his consent.  According to the government chemist, the same was confirmed to match with the DNA sample taken from the straw.

Criminal records and the background of the defendant

12.  The defendant is aged 41.   In the past, he had appeared in the courts in Hong Kong in no less than eight occasions.  In 1994, he was convicted for two offences of “Burglary” for which he was sentenced to the Detention Centre.  There are also offences involving dishonesty including one “Taking conveyance without authority” and also four “Thefts from vehicle”. For these offences, he was sentenced to Detention Centre and to prison respectively.  His last conviction was in January this year for a “Trafficking in dangerous drugs” case for which he was sentenced to 34 months’ imprisonment. 

13.  The defendant was educated up to a lower secondary school level in Hong Kong. 

Mitigations

14.  Mr Nicky Tse, solicitor mitigated that the defendant has to support his two retired parents.  His father was aged 70 and his mother 60.  Each month, he contributes about $4,000 to the parents.  At the time of the offence, the defendant worked as a part-time decoration worker earning an income of $10,000 per month. 

15.  Mr Tse stressed the fact that the defendant was very remorseful and pleaded guilty in the first available opportunity and thereby saving court’s time.  He told the court that the defendant committed the offence because he had financial difficulty.  Defendant asks the court to be as lenient as possible so that he can serve his time and come out to take care of his age-old parents as soon as possible.

16.  Mr Tse acknowledged that the starting point for a domestic burglary is 3 years’ imprisonment.  Mr Tse also noted that the defendant had previous Burglary records but submitted that those are many years ago and he urged the court to consider the fact that the defendant was young and immature when he committed the offences and therefore asked the court to disregard those earlier convictions.

17.  Mr Tse also submitted that there is no aggravating factor present in this case.  He pointed out that this is a single offence and it was unplanned by the defendant.   No heavy equipment was used and nobody was injured during the incident.  Defendant was not a professional burglar albeit that he had two similar convictions when he was at the age of 21. 

Sentencing considerations

18.  According to the Court of Appeal’s guideline, for domestic burglary offence, the starting point for a defendant who is of full age and of a clear record would be 3 years.  Later in HKSAR v Cheng Wai Kai, CACC 338/2007, the Court of Appeal also said that the starting point can be adjusted upward if there are aggravating circumstances such as: (1) the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment; (2) the offence is committed by two or more people; (3) the offence targets substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions particularly previous convictions of similar nature; and (6) the offender commits multiple offences.

19.  I have enquired with Mr Tse as to what tool the defendant had used in trying to remove the padlock of the burgled premises.  I also made the observations that the value of the stolen property is quite substantial for a similar type of domestic burglary offence and for exactly how much that the defendant had sold the stolen properties for profit and the answer was that he had used a screwdriver to remove the padlock and he sold the stolen property for about $100,000 but he had spent it all with his girlfriends on entertainment. 

20.  Thus, it is clear to me that the defendant did not commit the offence purely because of financial difficulties.  Even he did, there is no excuse for him to commit the offence because he had suffered financially.  The court would never accept any economic reason for committing an offence.

21.  The occupant of the burgled premises, PW1, on the other hand, suffered a great deal financially because of the defendant’s misdeed.  None of the stolen property is recovered so far.  The stolen properties also involve personal properties such as passport and bank passbooks, etc, which cause considerable inconvenience to the victim trying to replace them.  Accordingly, I see that these are aggravating factors which merit an increase in the sentence. 

22.  While I can accept the submission that the defendant may not be a professional burglar because his previous and similar burglary convictions were entered when he was at the age of 21 which was many years ago and he was not using any heavy instrument other than a simple tool of screwdriver, however, I still cannot overlook the fact that the defendant had previous convictions. 

23.  Apart from the two similar burglary convictions, as said, he had also committed a number of offences involving dishonesty. Therefore, for these two aggravating features to which I have identified just now, for each aggravating features, I would add another 3 months to the starting point.  A total of 6 months’ imprisonment would therefore be added to the basic starting point of 36 months, making a total of 42 months’ imprisonment. 

24.  The defendant pleaded guilty which is the only effective mitigation for which he would be entitled to an one-third reduction. As a result, for this offence, the defendant is sentenced to 28 months’ imprisonment.

25.  The defendant is now serving a sentence in respect of a “Trafficking in dangerous drugs” offence.  He was only sentenced on 8 January this year for a period of 34 months’ imprisonment.  Obviously, the nature of the present offence is entirely different from the offence that the defendant is now serving.  These are two separate and distinct offences.  In principle, a wholly consecutive sentence can be imposed.  I was given to understand that the earliest date of discharge of the defendant’s present sentence is on 17 July 2016. 

26.  Taking into account the totality principle, however, I order that 6 months of the present sentence that I have just passed to be served concurrently to his current sentence.