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DCCC 80/2016
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 80 OF 2016
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| Before: |
H.H. Judge G. Lam |
| Present: |
Ms. Janice CHEUK, SPP (Ag.), of the
Department of Justice, for HKSAR. |
|
Mr. Norman LEE of M/s Peter K.H. Wong & Co.,
assigned by the Director of Legal Aid, for the
defendant. |
| Offences: |
(1) to (3) Burglary（入屋犯法） |
REASONS FOR SENTENCE
The defendant pleaded guilty to 3 charges of "Burglary". He burgled the same restaurant 3 times within a month and stole cash in a total sum of about $4,500.
Summary of Facts
2. Mr. CHAN (PW1) is the manager of Eightland Café Restaurant ("the Restaurant") situated at a ground floor shop in Tai Po. Its address is particularized in the Charges. The Restaurant has 3 entrances (namely front door, side glass door and back door).
Charge 1
3. About 11:00 p.m. on 3 November 2015, a passer-by Madam WONG (PW2) saw the defendant approaching the Restaurant's back door. He shook the door with both hands for about 30 seconds until he noticed PW2 looking at him. Later in the same evening, PW2 posted a message in a Facebook group alerting others of the defendant's behaviour.
4. About 1:50 a.m. on 4 November, having read PW2's post on Facebook, PW1's employer asked PW1 to return to the Restaurant. PW1 soon arrived at the Restaurant and discovered signs of burglary (the back door open and the lock of the side glass door broken). He also found cash in a total sum of $3,450 missing from the cashier area. The matter was reported to the Police.
Charge 2
5. About 6:30 a.m. on 15 November 2015, upon returning to the Restaurant, some employees found the side glass door having been prized open. The back door was opened as well. PW1 later confirmed that cash in a total sum of $1,000 was missing from the cashier area. The matter was reported to the Police.
Charge 3
6. About 11:30 p.m. on 29 November 2015, passers-by Mr. WONG (PW3) and Mr. AU (PW4) were chatting with friends near the Restaurant. The defendant asked them for a lighter and left. About 1:00 a.m. (on 30 November), the defendant approached PWs 3 and 4 again and asked if they had seen any police officers. About an hour later, the defendant approached them for the 3rd time asking them to pretend that they did not see anything which he was about to do. Following that, PWs 3 and 4 saw the defendant opening the Restaurant's side glass door, walking inside and heading to the cashier area. PWs 3 and 4 called the Police.
7. When the Police arrived, they found signs of burglary at the Restaurant (the side glass door, the cash register and the drawer underneath all having been prized open). PW1 later confirmed that cash in the sum of $60 was missing. A knife was found on the floor near the cashier area.
Arrest and Admissions
8. The defendant was arrested on 1 December 2015 for the 3 burglary offences. Under caution, he admitted that he was in need of money and thus stole from the Restaurant out of momentary greed.
9. In his video recorded interviews, the defendant explained in details how he burgled the Restaurant on 3 different occasions. He claimed that the picked up tools from a construction site at the basketball court near the Restaurant to commit the offences.
10. PWs 2 and 4 positively identified the defendant at an identification parade conducted on 2 December 2015.
Mitigation & Sentence
11. The defendant is 34 and has 16 conviction records, which include 4 "Burglary" offences and numerous drug-related offences. According to his criminal records, the defendant has since 2001 (at the age of 19) spent a majority of his life serving time in prison or a Drug Addiction Treatment Centre. Defence solicitor Mr. LEE informed me that the defendant is married with no children. He was a construction worker prior to his arrest.
12. In mitigation, Mr. LEE submitted that the defendant suffers from a blood vessel problem in his lower limbs, which causes him pain after walking for a long time. He inherited this disorder from his father. Mr. LEE has also handed up a list of cases on sentencing of multiple burglaries. He stressed the importance of the "totality" principle.
13. The defendant's criminal record is appalling. Although dating back to 2005, he has 1 conviction record which involved 4 "Burglary" offences, for which he was sentenced to a total of 28 months' imprisonment. I would certainly bear in mind his criminal history. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. Committing a series of burglaries against the same premises within a month can all be regarded as aggravating factors[1].
14. After due consideration, I have decided to raise the starting point to 33 months' imprisonment for each charge. With the guilty plea, the sentence is reduced to 22 months. Apart from this, I see no other mitigating factors which warrant any further reduction. The sentence for each charge is 22 months' imprisonment.
15. Bearing in mind the totality principle, I consider a global starting point of 42 months to be appropriate for all 3 charges. With the guilty pleas, the overall sentence is reduced to 28 months. Hence, I order the sentences to run in the following manner :-
(i) 3 months in Charge 2 consecutive to Charge 1; and
(ii) 3 months in Charge 3 consecutive to Charges 1 and 2.
Thus, arriving at a total prison term of 28 months.
[1] In HKSAR v CHENG Wai Kai CACC 338/2007, Yeung JA (as he then was) held "The starting point [for burglary of non-domestic premises] can be adjusted upwards if there are aggravating circumstances such as… (5) the offender has previous convictions, particularly previous convictions of similar nature; and (6) the offender commits multiple offences." (at para.15) Furthermore, the English Court of Appeal in R v Brewster & others [1998] 1 Cr.App.R.(S.) 181 held that repeated visits to the same premises constitute an aggravating feature in domestic burglaries. (pp.185 to 186)
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