HKSAR v. WAN KAM TIM

DCCC 415/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 415 OF 2017

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REASONS FOR SENTENCE

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1.  In this hearing, the defendant faced three charges of burglaries.  He was convicted upon his plea and admission of facts.

2.  The defendant was a tenant of one of the four rooms in an apartment situated in Cheung Sha Wan Road, Sham Shui Po.  All four rooms had been rented out and all had been secured by a wooden door and locked.

Charge 1

3.  At about 1 pm on the 9th day of February 2017, the defendant prised open the door of Room 1 of the premises in question and took away two cell phones belonging to the tenant of that room.  In the afternoon he returned one of the stolen phones to the son of the tenant.

Charge 2

4.  He prised open Room 2 and stole a key and cash of $3,960.

Charge 3

5.  On the same day in the same afternoon, he prised open Room 4 and stole cash of $4,925.

6.  Some time in the evening on that day, the police came to investigate.  Under caution the defendant admitted to have committed the burglaries.  The loot was found inside his room.  During subsequent investigation, he also admitted that he had used a metal pole and a flat file to prise open the three rooms and stole the properties belonging to the respective tenants.

On sentencing

7.  The present case is one involving burglaries of 3 domestic premises.  Both prosecution and defence agree that the guideline applicable for sentencing such offences should be 3 years.  I do not see any reason to depart from it.

8.  The offence had been committed in succession in the same day, so I take it as a one transaction, since the defendant had used the same tools and the same method to enter into the premises.  I shall also take into account the fact that the defendant made an admission right away. 

9.  However, I cannot ignore the fact that the defendant had committed the three offences in rapid succession.

10.  I therefore will adopt a higher overall starting point of 39 months.

Mitigations

11.  I turn to consider the mitigations and the background information supplied by the prosecution.

12.  The defendant is neither young nor a first offender.  At the time of the offence, he was aged 31 and he had been convicted by the courts in Hong Kong on a total of eight occasions, involving nine offences. In 2002 he was convicted of a dishonesty-related offence (ie theft) for which he was fined.  Most of his other convictions are related to dangerous drugs. In the year 2011 he was convicted of a charge of trafficking in dangerous drugs, for which he was imprisoned for 40 months. 

13.  The defendant worked as a cook when he was arrested.  He was a drug addict.  The prosecution also pointed out that he has triad association.

14.  From the submission of his counsel, Miss Chan, I also learnt that he was under the influence of dangerous drugs when he committed the offence.

15.  None of these are relevant mitigation material. It is a very clear principle in law that, if one worked up the Dutch courage to commit crimes, this could not be a defence nor could this be a mitigating factor.  The fact remains that the defendant had committed the offence and stolen properties from three of his neighbours.

Totality

16.  These offences are committed in rapid succession, within the same flat.  I consider the offence had been committed out of the same incident and I therefore consider it proper that they should all run concurrently.

17.  The only valid mitigation is the defendant pleaded guilty.

18.  I therefore reduce his term of imprisonment for each charge from 39 months to 26 months.  They are all to run concurrent.