HKSAR v. KO CHI WAI

DCCC 144/2018

[2018] HKDC 1073

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 144 OF 2018

----------------------------

----------------------------

-----------------------------------------

REASONS FOR SENTENCE

-----------------------------------------

1.  Defendant Ko Chi Wai pleaded guilty before me to one charge of Attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210, and section 159G of the Crimes Ordinance, Cap 200. Particulars of offence are that he, on 14 January 2018, in Hong Kong, attempted to enter as a trespasser part of a building known as “Heung Kwok Shing Bonesetters”, Ground Floor, No 117 Po Kong Village Road, Tsz Wan Shan, Kowloon, with intent to steal therein.

Admitted facts

2.  The facts admitted by Mr Ko may be summarized as follows.

3.  Shortly after midnight into 14 January 2018, Mr Ko was seen acting suspiciously outside the subject bone-setting shop by pressing open the shop’s rolling shutter.  When the shutter opened to about 2 feet from the ground, Mr Ko suddenly left.  Observing police officers stopped and searched Mr Ko and found in the bag carried by the latter 5 screwdrivers and 2 pairs of pliers.

4.  The control panel box housing the shutter switch was found to be prized open.  The lid of the control panel box and padlock securing it in place were found to be on the ground.

5.  Under arrest and caution, Mr Ko admitted that he intended to steal from the shop; that he prized open the lock but left when he realized someone had found out what was happening.

6.  The cost of repair of the control panel box was about $2,000.

7.  In a later cautioned VRI, Mr Ko admitted that:-

(a) He went to the shop with his bag intending to see if there was anything worth taking from the shop; and

(b) He used one of the screwdrivers to prize open the control panel box leaving the lid and padlock on the ground; he pressed the button to raise the rolling shutter to about 2 feet off the ground but left when he became scared that the noise thus created would alert someone.

Criminal record

8.  The agreed criminal record shows that Mr Ko has 20 previous convictions collected through 15 court appearances 3 of which convictions were for burglary (respectively in 2016 and 2017) and 8 others of which were for theft (spreading from 2004 to 2016).

Antecedents

9.  The agreed antecedents statement shows that Mr Ko is aged 47 now and at the time of the offence; he received up to F3 education.  Since then, he had worked as a renovation and casual worker.  He was unemployed at the time of the arrest.  He is divorced and lived with his mother before arrest.

10.  The prosecution told me that Mr Ko was last released on 4 January 2018.

Mitigation

11.  Mr Karl Keung of counsel mitigated on behalf of Mr Ko.

12.  The following is a summary of the mitigation submissions.

13.  Before the offence, Mr Ko was living with his mother (73).  Mr Ko divorced with his wife in 2015.  Daughter (11) lives with ex-wife.  Mr Ko has been paying $3,000 a month to maintain them.  He was living in public housing and was not in receipt of public assistance.

14.  Mitigation letter written by Mr Ko was submitted which spoke to his remorse and told of the reason why he committed the offence: alcoholism.

15.  Mr Keung has nothing to submit on the question of enhancement on the basis of the appalling record of Mr Ko.

16.  Mr Ko is unable to pay compensation to the victim for the cost of repair.

17.  Lastly, Mr Keung submitted that Mr Ko made full admission to the police at the scene and pleaded guilty at the earliest opportunity.  He asks for a lenient sentence on behalf of Mr Ko.

Sentence

18.  I have considered the mitigation submissions including the content of the mitigation letter.

19.  The conventional sentence for burglary of non-domestic premises without aggravating or mitigating features is 2 ½ years’ imprisonment (see Attorney General v Lui Kam Chi [1993] 1 HKC 215, and HKSAR v Sim Ka Wing, CACC 450/2000).

20.  In terms of sentence, there should be no difference for an attempted burglary (see HKSAR v Mohammad Farooq, CACC 406/2013).

21.  I note the appalling dishonesty-related record Mr Ko has managed to accumulate for himself and the fact that the present offence was committed only 10 days after his last release.  On the principle stated in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, I enhance the starting point to 2 years 9 months.

22.  Mr Ko has pleaded guilty in good time for which he is entitled to a 1/3 discount.  I cannot find any other mitigating factors of sufficient weight to earn him any further discount.

[Mr Ko, please stand]

23.  Mr Ko will go to prison for 22 months.