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DCCC 75/2022
[2022] HKDC 1212
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 75 OF 2022
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| Before: |
Deputy District Judge M Chow in Court |
| Present: |
Ms. Liza S. H. YIP, Counsel on fiat, for HKSAR/Director of Public Prosecutions |
| |
Mr. Raymond C. C. YU, instructed by Messrs. Tsangs, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
[1] Burglary (入屋犯法罪) |
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REASONS FOR SENTENCE
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1. The Defendant pleaded guilty to a charge of burglary.
Summary of facts
2. On 29 August,2021, PW1 locked the doors of his restaurant and left.
3. At about 8:30am, PW1 received alerts from his mobile phone which was connected to the restaurant’s CCTV system.
4. PW1 then viewed the CCTV record and found that the Defendant entered the restaurant on 2 occasions in that morning: -
(a) Between 6:54 and 7:18 am, the Defendant attempted to break the side door lock with a spanner, but failed.
(b) Between 8:26 am to 8:43 am, the defendant used a crowbar to prize open the side door and attempted to break the safe which was placed near to the cash registry, but also failed to break open it.
(c) In both occasions, the Defendant did lower his mask once and that showed his face.
5. PW1 confirmed that no property was stolen from the restaurant, but the door lock to the side door was damaged and cost $1,000 for replacement.
6. The Defendant was arrested on 8 November, 2021.
Criminal record
7. The Defendant has a long list of criminal records, altogether 15 previous convictions, eight records related to burglary offences. His last burglary conviction was in 2014.
Mitigation
8. The Defendant is now 64 years old, his wife separated from him while his two grown up children are now living in Macau.
9. At the time of the offence, the Defendant worked as a construction site worker. However, due to inadequate income, he committed the present offence.
10. The Defence submitted that:-
(a) it is a non–domestic premises, therefore the usual sentence should be one of 2 ½ years.
(b) There is no substantial loss, the damage to the lock was $1,000.
(c) The Defendant committed the offence alone.
(d) The usual 1/3 discount should be grant to the defendant.
11. The defendant in his written mitigation letter told me that he had been a drug addict for the last 20 years, all his earnings have been used for buying drugs. His family members have no contact with him due to his drug problem. He vowed not to take drugs again as he is now getting old with health issues. He is now determined to start a new leaf as God is besides him to guide him to the right path in the future.
Sentence
12. It is well settled that the starting point for non-domestic burglary should be 2½ years.
13. However there are bases on which the sentence can be adjusted upwards as a result of the aggravating factors as stated in HKSAR v Cheng Wai Kai CACC 338/2007:-
(a) Careful planning and skillful execution
(b) Use of heavy equipment
(c) Multiple professional offences
(d) Multiple offenders
(e) Previous conviction, particularly previous convictions of a similar nature
14. In the present case, I consider that there are a number of aggravating features: -
(a) On the first occasions, The Defendant attempted to break open the lock with a spanner, but he failed to do that.
(b) He returned with a crow bar to prize open the side door of the restaurant
(c) In both occasions, the defendant used equipment for the purpose of burglary.
(d) The defendant had 8 previous of burglary convictions records.
15. A such, I considered that the starting point should be substantially enhance to deter the Defendant from committing further offence. Otherwise, it will lose its deterrent effect upon the defendant.
16. To this end, I consider that the sentence should be enhanced by 9 months. It arrives at 39 months, given the 1/3 discount, it comes down to 2 years 2 months.
17. Finally, as I have discussed with the defence counsel, the defendant should have faced 2 charges as stated in HKSAR v Lau Hiu Man [2013] HKCU 706 that the appellant went into the same unit twice within a matter of minutes, the Court of Appeal upheld that 2 burglary charges were separate and distinct offences,
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( M Chow ) |
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Deputy District Judge |
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