HKSAR v. CHOW KAM KI AND ANOTHER

DCCC955/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 955 OF 2011

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Reasons for Sentence

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1.  Both defendants have been committed after trial of one charge of attempted burglary.

2.  I do not intend to repeat the facts.  I gave full details of the evidence and facts in my verdict.    

3.  I was sure the defendants were caught red-handed trying to cut open the padlock or chain of Apartment B with tools very useful to commit a burglary. 

4.  I am sure the 1st defendant was holding a tool whilst the 2nd defendant was acting as a lookout. 

5.  The 1st defendant does raise after mitigation, and contrary to his instructions to Mr Yip, he was under the influence of drugs and did not know what he was doing.  This was not the defence put forward during the course of the trial.   

6.  The 1st and 2nd defendant are not men of clear records.  They have many previous convictions, mainly either offences of dishonesty or drugs. 

7.  It is well-established that a term of imprisonment is appropriate for burglary and normally a starting point of 3 years for a burglary of a domestic premise is what the courts would take as a starting point.

8.  Both defence counsel have asked this court to depart from that normal starting point on the ground that the apartments were obviously vacant and ready for demolition, but the new owner nonetheless still secured each premises under lock and chain.  This lock and chain is a clear signal that the new owner did not give anyone permission to trespass within.   

9.  Moreover, this is not an opportunistic crime or scenario.  There were tools taken to the premise for the purpose of cutting padlock and chain.   

10.  However, I do accept that there would have been no inhabitants inside the premises and I am sure that is a reason the defendants attempted to break in.

11.  I take into account that no one would have been confronted or frightened.  So for that reason I will lower the normal starting point of 3 years.

12.  I say here that I do not distinguish the roles of either defendant.  They are equally culpable.  

13.  The 1st defendant would like the court to consider medical or psychiatric reports at this stage.  The 1st defendant says he has been diagnosed with paranoid schizophrenia.  There is a medical certificate supplied by the 1st defendant, dated 18 May 2011, confirming this diagnosis and detailing his medication prescribed.

14.  The defendant not only would like report called for, he would prefer to be detained in Siu Lam Psychiatric Centre.  However, I do not see a hospital order likely, nor do I see reports as necessary.  The defendant has a diagnosis and has medication prescribed and the defendant can have psychiatric treatment, if required, in detention.    

15.  After mitigation and considering the facts of this case, I will take a starting point of 2 years and 6 months.  I see no reason for any further discount. 

16.  The 1st and 2nd defendant are sentenced to 2 years and 6 months’ imprisonment.  I add to the warrant the 1st defendant is to be given psychiatric treatment if required.