HKSAR v. WONG CHI HUNG

DCCC 697/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 697 OF 2013

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Reasons for Sentence

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1.  The defendant is facing three charges of non-domestic burglary. He pleads guilty to Charge 1 and Charge 3 but not guilty to Charge 2 which is left on court file and not to be proceeded with without the leave of the court.

2.  Central Kowloon Health Centre (“the Centre”) is a single-storey building situated at Argyle Centre in Kowloon City but serves as a general out-patient clinic and dental clinic. 

Charge 1

3.  On the morning of 14 February 2013 after the Chinese New Year holiday, the staff of the centre discovered that the window near the cashier office had been prized open.  Cash of $200 and $100 were missing from the cashier office and a dental consultation room respectively.

4.  CCTV footages show the defendant wearing a hooded top, a mask, a pair of gloves and a brown bag entered the lobby of the centre and wandered around the cashier office at about 12.20 am of 12 February 2013.  The defendant’s face was captured by the camera and then at about 12.44 am he used something to cover the camera. 

Charge 3

5.  In the late night of 20 April 2013 police officers mounted an anti-burglary operation in the centre.   On 21 April 2013 at about 3.57 am they spotted the defendant opening a ventilation window of the centre and then he entered the pantry. 

6.  Police officers approached the pantry and saw the defendant was squatting with a can of food in his hand.  A box of chocolate snack was found on the floor next to him.  Shoeprints were found on top of a metal cabinet placed beneath the ventilation window and on the floor of the pantry respectively. 

7.  The defendant was arrested for burglary.  Under caution he admitted he had entered the centre for a few times to steal money and food because he was hungry.

8.  In a subsequent video-recorded interview the defendant admitted that in early March 2013 he climbed over the fences at the hillside and entered the centre by breaking the window of the cashier office. He stole coins and banknotes of about $300.  He also stole some food (Charge 1).  On 21 April 2013 he entered the centre via the same route and went to the pantry to steal some food because he was hungry (Charge 3).

9.  He also admitted that he wore gloves each time he committed the offence under Charges 1 and 3 to avoid leaving fingerprints at the scene.

Background and mitigation

10.  The defendant is aged 48.  He has one previous conviction back in 1992.

11.  In mitigation, Ms Tang, solicitor for the defendant, says the defendant was a driver at the time of the offences. However, as he had been addicted to gambling and incurred heavy debts, he was so disturbed by debt collectors that he could not go to work.  At the time of both offences he had been in hunger for two days and he went into the victimized premises to look for food.  Stealing the money in Charge 1 was only an opportunistic act.

12.  She submits that for Charge 1 the money he stole was only a small amount and for Charge 2, he only stole some snacks.  Ms Tang referred the court to The Queen v Wong Man CACC372/1992 saying that the usual starting point for non-domestic burglary is 2½ years’ imprisonment.  She asks the court to pass a concurrent sentence for both offences.

13.  The correct starting point for a single offence of non-domestic burglary is 2½ years’ imprisonment (see also R v Lui Kam Chi [1993] 1 HKC 215).  Accepting that the defendant was in hunger when the two offences were committed, I do not think that a starting point lower than 2½ years for each of the offences can be justified.

14.  The two offences were not opportunistic burglaries.  For Charge 1, CCTV footages show that the defendant was wearing a hooded top, a mask, a pair of gloves and a bag, he also used something to cover the CCTV camera.  The defendant also admitted that he wore gloves each time to avoid leaving fingerprints at the scene.   The offences were premeditated and committed in the small hours of the morning. 

15.  In the circumstances I adopt 2½ years as the starting point for each of the two offences.  Financial pressure cannot be a mitigation to reduce the sentence.  The only mitigation in favour of the defendant is his plea of guilty for which he will have one-third reduction of the sentence. 

16.  The two offences were separate and distinct offences.  The sentences for the two charges should run consecutively in principle.  Totality has to be considered but wholly concurrent sentences is wrong in principle.  I noted that the value of the stolen properties in the two offences was small, the defendant’s criminal record is not very bad.  I will therefore only order a small part of the sentence in Charge 3 to run consecutively to the sentence in Charge 1. 

The sentence

17.  Charge 1, 20 months’ imprisonment.  Charge 3, 20 months’ imprisonment, out of which 2 months to run consecutively to the sentence in Charge 1, and the rest to run concurrently.  The total term of imprisonment is 22 months’ imprisonment.