DCCC642/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.642 OF 2010

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Reasons for Sentence

1.  The defendant faces one charge of Aggravated Burglary, contrary to s.12(1) and (3) of the Theft Ordinance, Cap.210. Particulars of the offence are that, the defendant on 10^th September 2009, in Hong Kong, having entered as a trespasser part of a building known as Flat A, 2/F, Nos.2-3 Tai Pak Terrace, Kennedy Town, stole therein 2 video game players and at the time of the said entry had with him a weapon of offence, namely, a knife.

Facts

2.  At around 1:45pm on the charge date, PW1 left his home (the charge address) and locked the front door. The windows were however unlocked. About 15 minutes later, PW1 returned to get his wallet that was left behind.

3.  When inside, PW1 saw the defendant coming out of one of the rooms. PW1 at first thought the defendant was his son and just proceeded to his bedroom. Suddenly, the defendant dashed forward and grasped PW1’s neck from behind with his left hand. The defendant took out a meat knife 29cm long with his right hand and pointed it at PW1. The defendant said, “I just want money, don’t move!” and pushed PW1 to his room.

4.  When inside PW1’s room, PW1 suddenly pressed the defendant’s right hand with both his hands and tried to seize the knife. The defendant grasped PW1’s neck with great force making it difficult for him to breathe. After struggling with the defendant for about 1-2 minutes, PW1 managed to seize the knife from the defendant. The defendant continued to grasp PW1’s neck with his left hand and started to punch PW1’s head with his right hand. PW1 stabbed the defendant’s right leg several times to defend himself, causing the defendant to bleed. The defendant released PW1 after he was stabbed and fled from PW1’s home. It was later confirmed that the defendant picked up the knife from PW1’s kitchen.

5.  As a result of the incident, PW1 said he suffered from lacerations on his left index finger, right hand and abrasion on his right forearm. PW1 said those were minor injuries and refused medical treatment. PW1 found that 2 video game players worth about $3,000 in total were stolen.

6.  As a result of forensic examination of the DNA in the blood of the defendant found at scene, it was discovered that the defendant had left Hong Kong for mainland China 2 days after the burglary.

7.  On 9^th April 2010 (about 7 months after the burglary), the defendant was arrested on the street in Hong Kong. Under caution, the defendant said he knew nothing about the case. It was found that the defendant had knife scars on his right thigh, consistent with the evidence of PW1 that he had stabbed the defendant’s right leg.

8.  At all material times, the defendant entered PW1’s home as a trespasser and stole the 2 video game players therein.

Previous convictions

9.  The defendant has 23 previous convictions on 16 occasions, 4 involved offence of dishonesty. His last conviction was in April 2006 for burglary when he was sentenced to 24 months’ imprisonment.

Mitigation

10.  Counsel for the defendant submitted that since the defendant only picked up the knife from kitchen, his case is different to the more serious cases where the defendant brought along a knife and then entered the flat as a trespasser to commit burglary.

11.  Counsel also submitted that the injuries of the victim seemed to have been minor since the victim himself considered them to be minor. Also, the stolen property was worth $3,000, not a very substantial amount.

12.  Letters written by the defendant and his wife together with the medical history of the defendant’s parents were submitted for the court’s consideration.

Sentencing authorities

13.  The starting point for a case of simple burglary of a domestic premises is 3 years’ imprisonment. We are however dealing with aggravated burglary.

14.  In the case of R v Ko Lai Man and others, CACC 362/1991, the Court of Appeal found that on sentencing in a charge of aggravated burglary, the trial judge was right to refer to the sentencing guidelines for cases of robbery in Mo Kwong Sang v R [1981] HKLR 610. Counsel for the defendant accepts that Ko Lai Man is good law. The judgment in Ko Lai Man is short and I have included it below:

“The applicants faced four counts. They were aggravated burglary, wounding with intent, and two counts of false imprisonment. They were convicted after trial before Deputy Judge Leong and a jury and were sentenced to eight years on the aggravated burglary, four years on the wounding, and four years on each of the false imprisonment. All of the sentences were ordered to be concurrent. Their application for leave to appeal against conviction was heard by this court and dismissed. They now seek leave to appeal against their sentences.

3. The facts which I have taken from the judgment of this court dismissing their application for leave to appeal against conviction are as follows: The applicants went to the premises where the offences occurred at about 12.15 p.m. They forced their way in, pushing past the Filipino maid. The 3rd applicant held the maid's neck, pointing a bread knife at her and telling her not to scream. There were three other persons in the premises - Mr. Tsong the householder, his friend Miss Fei and his elderly grandmother. It was the evidence of the maid that the 1st and 2nd applicants kicked open the door of the room in which Mr. Tsong and Miss Fei were and that the 2nd applicant then tied up her and Mr. Tsong. The maid said that the knife which the 3rd accused held was not one which she had previously seen in the house.

4. Miss Fei, Mr. Tsong's friend, gave evidence saying that she heard noise, realized that something was amiss, and tried unsuccessfully to stop the door from being kicked in. She said she was menaced by the 1st applicant who was holding a chopper and that she recognized this as having been taken from the flat's kitchen. She said she was also menaced by the 3rd applicant who was holding a bread knife which she said was not one of the household knives. She said that the 3rd applicant became angry when she tried to intervene to protect the grandmother and thrust the knife towards her and that her hand was then cut as she tried to ward it off.

5. Mr. Tsong in his evidence said that the 3rd applicant had a knife and that the 1st applicant had a chopper and that at some time after their entry, it seems that this was after they had become aware that the police were on the scene, they told him that they had come to collect a debt and were looking for Ah Tak.

6. It was the defence case, which the jury clearly rejected, that the three were attempting to collect a debt and that they had gone to the wrong flat and that the bread knife had come from the kitchen.

7. The accused were aged 21, 20 and 22. The application for leave to appeal which has been argued today by Mr. Kan placed reliance upon the fact that they are all relatively young, that none have been in prison before and that they did not, in fact, steal anything from the premises. The latter is true, but may well be explained by the fact that they became aware that the police were on the scene and that they were likely to be apprehended.

8. We are satisfied that the trial judge rightly had in mind the guidelines in MO Kwong-sang when sentencing these applications. It is true, as Mr. Kan points out, that they were charged with aggravated burglary and not robbery but the facts were very akin to those of a robbery.

9. Bearing those guidelines in mind it seems to us that nothing can be suggested which would indicate the judge made a wrong assessment when he sentenced each on the burglary charge to eight years.

10. The application must fail and is therefore dismissed.”

15.  In the case of Mo Kwong Sang v R, supra, the charge that the Court of Appeal was dealing with was robbery. The facts of the case are that, on the night of the 30^th and 31^st October, 1979, the applicant and another man broke into private domestic premises occupied by two girls. One of the girls was away; the other was threatened by the two men with knives and tied up. The two men ransacked the flat and removed from it cash and various valuable articles which they found there.

16.  The applicant was identified because his fingerprints were found on a tin box and a jewellery case which had been present in the flat.

17.  At the time of the offence the accused was 22 years' old and was treated by the District Judge as a first offender, since other offences of which he was earlier convicted had taken place after the date of this robbery.  He was sentenced to 4½ years' imprisonment.

18.  The Court of Appeal laid down the following guidelines for future robbery cases:

“11. As this court has said on a number of other occasions, little account can be given to the previously clear record of anyone who takes part in an "armed robbery".

12. We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim should normally be five years.

13. If such a robbery also involves an invasion of private premises (which includes domestic and business premises and the common parts of premises such as lifts and staircases) we suggest that a sentence of six years would be appropriate.

14. If any physical violence, which includes tying them up, is used on any of the victims, we suggest that a sentence of seven years should be considered.

15. These suggested sentences should be increased if there are other aggravating factors. Among these, though the list is not exhaustive, are invasion of domestic premises during the night; the presence of more than one person in the group of robbers; threats made to victims; ill-treatment of elderly persons and children; and a multiplicity of offences of a similar kind.

16. These guidelines are intended to apply to those who are convicted after a trial. Thus the suggested sentences should be reduced by such amount as the court may think appropriate for a plea of guilty.

17. Nothing which we say, of course, should be construed as inhibiting a court from adjusting these sentences to accord with the record, age or other personal circumstances of the accused or from taking account of the particular facts of the case before it.”

Sentence

19.  The maximum sentence for aggravated burglary is life imprisonment, which is the same as that in robbery.

20.  Had the defendant been charged with robbery instead of aggravated burglary, the defendant’s conduct would have attracted a starting point of 7 years’ imprisonment for being armed and for the use of violence when the defendant grasped PW1’s neck and the invasion of private domestic premises.

21.  I have taken into consideration that the knife was not brought in by the defendant but picked up from the kitchen, suggesting that the defendant may not have entered the premises with usage of weapon in mind. I also note that although the defendant did use some violence in overpowering PW1 at first, the injuries suffered by both PW1 and the defendant was as a result of PW1 trying to take the knife from the defendant.

22.  I have read the letters of mitigation and noted the medical conditions of the defendant’s parents. They are not factors significant enough to warrant a reduction in sentence. There are no mitigating factors other than the defendant’s guilty plea.

23.  There is however an aggravating factor in our case and that is the defendant’s appalling criminal record. The defendant has 23 previous convictions. Between 1996 and 2004, there was an 8 year period when the defendant managed to stay out of trouble. Even when he did breach the law again in 2004, it was for a relatively minor offence of Loitering when he was given a suspended sentence, which he breached when he committed his first burglary in 2006. Prior to the burglary conviction, the defendant had only been convicted of some theft and drug offences.

24.  The defendant entered PW1’s home to steal. When PW1 returned, the defendant could have tried to flee. Yet he did not. He chose to pick up a knife from the kitchen and hold it against PW1 instead. Even this action would have been more forgivable if in doing that he was just trying to buy time to get away, but no, he used the knife to threaten PW1 in order to continue with his burglary.

25.  Bearing in mind the full circumstances of the case and balancing the factors mentioned above, I find that an appropriate starting point is that of 7 years’ imprisonment. I will grant the full one-third discount in recognition of the defendant’s guilty plea and reduce the sentence to that of 56 months’ imprisonment.