HKSAR v. WONG CHI HONG

DCCC 661/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 661 OF 2015

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REASONS FOR SENTENCE

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1.  The defendant, Wong Chi Hong, appeared before me facing two counts of burglary. He pleaded guilty to both charges and admitted the facts pertaining to the charges.

2.  Both charges concerned a fast-food shop located in Ma Tau Wai Road, Hunghom.  The first offence took place on 17 June 2015 whereas the second offence took place on 21 June 2015.  For Charge 1, the defendant stole HK$2,200 cash from the shop.  As for Charge 2, he stole HK$200 cash from the shop.

3.  The fast-food shop in question was located at Shop 60, Ground Floor of Hung Hom Square in Ma Tau Wai Road, Hunghom.

4.  On 17 June 2015, the owner of the shop closed the shop at around 9 pm.  She closed the door behind her but forgot to lock the windows.  The owner returned to the shop at around 7:45 am on 18 June 2015.  Although the cashbox was locked, all the money inside was missing.  The loss was about HK$2,200.

5.  On 19 June 2015, the owner of the shop closed the shop at around 9:00 pm.  The shop was closed for business on both 20 and 21 June 2015.  The owner returned to the shop at around 7:45 am on 22 June 2015.  She found the cashbox with about HK$200 worth of coins inside missing.  She reported the matter to the police.

6.  The CCTV footage of Hung Hom Square captured the following:-

(1) At about 10:10 pm on 17 June 2015, the defendant loitered in front of the shop. He was wearing a pale grey T-shirt, dark pants and white sports shoes and carrying a grey sling bag. He left the shop via the door at about 10:18 pm.

(2) At about 10:19 pm on 21 June 2015, the defendant removed the plastic cover of the counter of the shop and climbed into the shop. He was then wearing a dark blue T-shirt, dark jeans-like pants and white sports shoes. He left the shop via the door at about 10:23 pm.

7.  PC13457 reviewed the CCTV footage in the afternoon on 22 June 2015.  Later on the same day, he spotted the defendant at the junction of Bailey Street.  He stopped and arrested the defendant.

8.  The defendant admitted Charge 1 and Charge 2 under caution.  He reaffirmed his admissions during a video-recorded interview held subsequently on the same day.

9.  The criminal record of the defendant shows that he has been convicted twice of theft.  He has five previous convictions for burglary. 

10.  The antecedent statement of the defendant shows that he was born in China in 1990.  He is now 24 years old.  He completed Form 3 education.  He is not suffering from any illness.  He worked as a delivery man before his arrest.

11.  Miss Hung in mitigation told me the defendant was born in China.  He moved to Hong Kong with his parents when he was small.  His parents divorced in year 2000.  At the time of Charge 1 and Charge 2, the defendant lived with his mother in Kwun Tong.  The defendant is the only son of the family and is the one responsible for the care of his mother.  At the material time, the defendant worked at a local café and he earned seven to eight thousand dollars per month.

12.  Miss Hung told me the defendant committed both offences under momentary greed.  He entered the shop to burgle when he walked past the shop after work.  He was under great pressure at the time.  He admitted the offences to the police upon arrest and showed his true remorse.  Miss Hung submitted that the two burglaries were not well-planned, and no tool was used by the defendant.

13.  Miss Hung submitted the case HKSAR v Sim Ka Wing CACC 450 of year 2000 and drew my attention to paragraph 9 of the judgment.  Keith JA giving the judgment of the court said at paragraph 9:-

“The conventional starting point of 2 and a half years’ imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting point. The conventional starting point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find.”

14.  Miss Hung also submitted a letter signed by the colleagues of the defendant.  The colleagues of the defendant ask for a chance on the defendant’s behalf.  The colleagues of the defendant mention in the letter that the defendant suffers from epilepsy, but obviously the commission of Charge 1 and Charge 2 had nothing to do with the epilepsy of the defendant.  They also mention in the letter that the defendant’s intelligence is lower than normal.  But from the letter, I can see that the defendant was able to work as a delivery worker, dishwasher and waiter at the café.  He was able to work as a normal person at the café.  In any event, the defendant had committed five counts of burglaries in the past. I am sure the defendant knew what would happen to him when he committed the offences in question.

15.  Miss Hung submitted that the burglaries in question were not well-planned and that no tool was used by the defendant.  If the burglaries were well-planned and if professional tools were used by the defendant, I would take them as aggravating features.  In my judgment, Miss Hung cannot turn the absence of certain aggravating features into a positive mitigating factor.

16.  On the other hand, the criminal record of the defendant shows that he had been convicted of burglary on some previous occasions.  In 2011, the defendant was convicted of two counts of burglary.  He was given a lenient sentence of 24 months’ probation order.  In 2013, the defendant was convicted of three counts of burglaries.  He was sentenced to a total of 26 months’ imprisonment.  In my view, the defendant is a repeated offender as far as the offence of burglary is concerned. 

17.  The defendant committed Charge 2 against the same shop four days after he committed the first offence.  In my view, the fact that the defendant committed Charge 2 against the same victim within a short span of time merits a higher starting point for Charge 2.  As the Court of Appeal said in Sim Ka Wing, the conventional starting point of 2 and a half years’ imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. 

18.  On Charge 1, I take 2 and a half years’ imprisonment as the starting point.  As I said, the defendant is a repeated offender for the offence of burglary.  It merits a higher starting point, and I take 33 months’ imprisonment as the starting point.  The defendant is entitled to the customary one-third reduction for his guilty plea.  For the reasons given, on Charge 1, I sentence the defendant to 22 months’ imprisonment.

19.  Likewise, for Charge 2, I take 2 and a half years’ imprisonment as the starting point. As I said, the defendant is a repeated offender as far as the offence of burglary is concerned, and I take a higher starting point of 33 months’ imprisonment.  Because of the fact that the defendant committed the offence against the same victim within a short span of time, I increase the starting point of Charge 2 to 36 months’ imprisonment.  The defendant is entitled to one-third reduction for his guilty plea.  For the reasons given, on Charge 2, I sentence the defendant to 24 months’ imprisonment.

20.  I have borne in mind the totality principle.  I have borne in mind all the matters urged on the defendant’s behalf by Miss Hung.  In my judgment, a total sentence of 30 months should adequately reflect the overall criminality of Charge 1 and Charge 2, bearing in mind the lower than normal intelligence of the defendant.  I order 6 months of the sentence of Charge 1 shall run consecutively to the sentence of Charge 2, hence, making a total of 30 months.