HKSAR v. TONG CHIU CHUEN

DCCC 417/2021

[2021] HKDC 771

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 417 OF 2021

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Reasons for Sentence

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1.  The defendant pleads guilty to one charge of burglary of domestic premises, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.  The victim of this burglary lived on the 2^nd floor of a three-storey village house in Pat Heung, Yuen Long, New Territories.  PW1, a neighbour, lived on the 1^st floor of the same house. 

3.  On 14 February 2021, PW1 left home at about 2 pm after checking and securing his home.  The victim left home at about 3 pm after checking and securing her home.  PW1 came home first at about 8.45 pm, with the victim returning home 15 minutes later.  When PW1 arrived home, he heard a male, the defendant, shouting for help.  He found him lying on the ground by the ground floor premises, injured.  The police were informed. 

4.  When the victim arrived home, she too heard the defendant shouting for help.  She went to him only for him to admit having stolen three handbags from her home.  He asked her to call an ambulance to help him.  The victim recognised her handbags worth a total of about HK$45,000.  The defendant had also stolen two red packets, each containing $500, from her. 

5.  After the police arrived and arrested the defendant, under caution he admitted he had burgled the 2^nd floor by climbing a tree and entering through an open window.  He stole three handbags and two red packets of cash from the 2^nd floor.  When he was leaving the premises via the same window, he lost his balance and fell to the ground from three floors up. He broke his leg badly.  The police also found a torch on the defendant as well as a rucksack containing a spanner, two screwdrivers, a crowbar, a hand saw, four pairs of gloves and seven packets of plastic bags. 

Mitigation

6.  I have considered the written mitigation submitted by Mr Lam.  He has said all he can say on behalf of the defendant.  I have taken into account he is single, lives alone, is 58 years old and has a poor criminal record.  He has 13 previous convictions all related to offences of dishonesty, including robbery, theft and burglary amassed over seven court appearances from 1984 to 2017.  He has appeared in the High Court on three separate occasions when he was a younger man and was last sentenced to 30 months’ imprisonment on 21 November 2017. 

7.  His plea of guilty is his best mitigation.  It has been stressed that he checked no one was at home before he entered the premises.  It has been stressed that his right leg shattered when he fell and he has no use of it, which is punishment in itself.  He will need a walking frame for the rest of his life and therefore cannot commit any more burglaries. 

8.  I have been told that he committed the offence because he had lost money gambling and was in financial difficulty.  He previously worked as a construction site worker but is obviously now unemployable due to his disability. 

Reasons for Sentence

9.  The usual starting point for a single burglary of domestic premises committed by an offender when there is no aggravating or mitigating factors is 3 years’ imprisonment.  This defendant has many convictions all relating to offences of dishonesty, many serious.  I am satisfied and the defendant accepts that he is a persistent offender.  Therefore, I enhance the starting point of 3 years’ imprisonment by 6 months to 3 years and 6 months’ imprisonment to reflect this aggravating factor. 

10.  There are no aggravating features in the circumstances of the commission of the offence.  There was no damage to property, for example, the windows, nor was any occupant actually confronted and frightened in their own home by the defendant trespassing. 

11.  The submission that he checked no one was inside before he entered the victim’s home carries little weight.  How could he be so sure no one was there?  And in any event, if the victim had returned home whilst he was inside her premises, she would have confronted him. 

12.  The defendant is entitled to a one-third discount for his plea of guilty at the earliest opportunity, which reduces the starting point to 2 years and 4 months’ imprisonment.  The submission that his serious injury to his right leg is punishment also carries little weight.  It is an injury he brought upon himself when he made the decision to climb in and out of a 3^rd floor window.  However, I am prepared to give him a 2-month discount because of the injury he suffered and the resulting permanent disability. 

13.  The defendant is therefore sentenced to 2 years and 2 months’ imprisonment.