HKSAR v. CHEN QING GANG

DCCC 564/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 564 OF 2012

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 2 charges of “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance.

The Facts

2.  According to the particulars of offence, both offences were committed on the same day on 29 April 2012 in the offices of the relevant construction sites from which the defendant stole two computer central processing units (CPU) and 12 CPUs from the 1^st and 2^nd sites respectively.

3.  I do not intend to repeat all the admitted facts save that it may be relevant to sentence.  In respect of the 1^st charge, a security guard (PW1) patrolled around the office of the 1^st site and found the defendant in the office at about 3 am on 29 April 2012.  When the defendant was confronted by the said security guard, the defendant pushed the security guard down to the floor.  The defendant dropped a shoulder bag (exhibit 1) on the floor and fled.  PW1 then made a report to the police.  Upon examination, a PRC identity card (exhibit 2), a two-way permit (exhibit 3) and 15 CPUs (exhibit 6) were found inside the bag.  Exhibits 2 and 3 were issued to the defendant. 

4.  A staff of the said office subsequently found that 3 desktop computers were disassembled.  2 CPUs were found missing and stolen from 2 of the 3 computers.

5.  At about 11:46 am on 29 April 2012, the defendant reported to the police the loss of his two-way permit.  He was then arrested.  Under caution, he remained silent. 

6.  During the subsequent police’s video interview and under caution, the defendant admitted that he came into Hong Kong on 28 April 2012.  Due to rainy weather, he climbed into a construction site (the 2^nd site), (related to the 2^nd charge).  He said that the main door was unlocked and hence he entered the building.  He then used a screw driver to disassemble the computers and had stolen 13 CPUs.

7.  The defendant later identified the seized CPUs as the CPUs he had stolen from the sites.  He also identified the sites where he entered before.  Another staff of the office of the 2^nd site confirmed that 12 CPUs were stolen and the total value was HK$3,000.  An unknown screw driver (exhibit 9) and an unknown pair of gloves (exhibit 10) were found in the 2^nd site.  

8.  PW1 identified the defendant in an identification parade. 

Criminal Records and Mitigation

9.  The defendant has two previous convictions, one related to dishonest offence, namely, “pickpocket” in which he was sentenced to 8 months’ imprisonment in 2003.  That was also his last conviction.

10.  In mitigation, Mr Mui submitted that the defendant is 37 years old.  He is married and is a father of 2 young daughters.  He is the sole breadwinner of the family.  He committed the present offences out of heavy indebtedness to friends because of the funeral expenses incurred by reason of the death of his father-in-law recently.  The value of the stolen property was about HK$3,000.  All properties were recovered.  The defendant is remorseful for the offences he committed.  He submitted the letter of mitigation through Mr Mui.   

11.  Mr Mui also submitted that the defendant committed the present offences out of momentary greed.  It was not premeditated.  The screw driver and the gloves found at the scene did not belong to him.   

Sentencing guidelines for non-domestic premises

12.  The proper starting point in a case of burglary of non- domestic premises in the absence of aggravating or mitigating factors for an adult offender of clear record is 2 years and 6 months’ imprisonment: R v Wong Man [1993] 1 HKC 80; HKSAR v Sim Ka Wing Cr App 450/2000 and Secretary for Justice v Tsang Hon-yin AR 5/2004. 

Present sentence

13.  I note from the admitted facts that the defendant needed to “climb” into the site before he could commit the present offences.  Further, although it is said that the screw driver and gloves found at the scene did not belong to him, he admitted under caution that he used a screw driver to disassemble the computers.  Moreover, he committed the offences soon after he arrived into Hong Kong.  I do not accept that the offences were committed out of momentary greed.  I was of the view that it was premeditated.  I also note that there was confrontation between PW1 and the defendant who pushed PW1 down to the floor in the course of fleeing.  There was no mitigating factor except the guilty plea. To the contrary, I was of the view that it was a premeditated plan, together with the confrontation and the act of pushing are the aggravating features. 

14.  I would adopt the imprisonment of 33 months and 30 months as the starting point for the 1^st and 2^nd charges respectively. Because of his guilty plea, I give one-third discount for each charge.  That arrives at 22 months and 20 months for the 1^st and 2^nd charges respectively.

15.  However, I accept Mr Mui’s submissions that the 2 sites are adjacent to each other and each offence formed an integral part of a single transaction.  I therefore order that the 20 months for the 2^nd charge be served concurrently with the 1^st charge.  In short, the defendant has to serve a total of 22 months’ imprisonment.