HKSAR v. TONG CHIU CHUEN

DCCC 688 /2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 688 OF 2017

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of attempted burglary[1] and one charge of burglary.

Summary of facts

Charge 1: attempted burglary

2.  The premises that the defendant attempted to burgle is located at no.12B Sha Kong Wai in Tin Shui Wai. It is a 3-storyed village house occupied by PW1’s son and his family members, used mainly as a holiday home. The house is surrounded by a 2 meter high wall.

3.  On 1^st June 2017, at 8:02pm, Police officers on anti-burglary patrol duty in the vicinity of Sha Kong Wai spotted the defendant climbing over the wall of no.12B. The defendant climbed back out one minute later.

Charge 2: burglary

4.  About 18 meters away from no.12B is where the premises that the defendant did burgle is located. It is an unnamed 3-storeyed stone hut. The owner of the premises confirmed that it had never been occupied and was vacant at all times as it was under renovation.

5.  After the defendant was seen climbing back out from no.12B, he climbed into the unnamed stone hut through an unlocked window on the ground floor.

6.  Shortly afterwards, the defendant left the stone hut via its front door and was forthwith apprehended and arrested by the Police officers who were keep him under observation. At the time of his arrest, the defendant was wearing a pair of working gloves and a surgical mask.

7.  Upon search, one 30cm long screwdriver, one 10cm long torch and 2 sets of keys were found on the defendant.

8.  Under caution at scene, the defendant admitted to going into the unnamed stone hut to steal an electric drill for reselling.

9.  At the later cautioned video recorded interview, the defendant admitted that the screwdriver on him was for forcing open any locked windows, the torch for lighting, the gloves for moving the drill, and the keys for gaining access into the premises for burgling.

10.  The residents of both houses confirmed that nothing was stolen.

Previous convictions

11.  The defendant has 11 convictions from 6 court appearances. All of the 11 convictions involve an element of dishonesty, being for robbery, going equipped for stealing, theft and burglary.

12.  The defendant’s last conviction was on 17^th October 2013, when he was sentenced to 28 months’ imprisonment for the offence of burglary. He was last released in late 2014.

13.  The present offences are the third and fourth convictions for burglary.

Mitigation

14.  The defendant is 55 years old. He was born in mainland China and came to Hong Kong in 1979. He is now a Hong Kong identity card holder.

15.  Prior to his arrest, the defendant worked as a casual decoration worker earning about $400 per day.

16.  Mr Chan for the defendant informed the court that the defendant is well aware of the sentencing guidelines concerning the burglary of domestic premises, as well as the fact that his conviction record may be viewed as an aggravating factor.

17.  Mr Chan pointed out that the defendant had indicated his guilty pleas at an early stage, that nothing was stolen from the premises, and that no one was inside when the offences took place and ask for leniency towards the defendant.

Sentence

Charge 1

18.  It is not disputed that the guidelines for sentence in case of burglary of domestic premises where the defendant is of clear record and full age is that of 3 years’ imprisonment.

19.  Burglary of domestic premises is viewed as more serious because of the possibility of confrontation with the occupant. Such confrontation will likely subject them to extreme fright brought on by the invasion of private property by a stranger. The gravamen of burglary of domestic premises is the fear felt by the victims and is viewed as an aggravating factor warranting the higher starting point when premises which are expected to be occupied are burgled[2].

20.  In relation to the property in charge 1, there is no direct evidence as to how often the house would be occupied during the year. The prosecution very fairly conceded that since it was being used as a holiday home, the likelihood of confrontation at the time of the defendant’s attempted burglary was small.

21.  In the case of the unnamed 3-story stone hut in charge 2, according to the owner it had been left vacant because of renovation work. That being the case, the chance of confrontation with the occupants, especially after work hours which was when the offence was committed, would be even lower.

22.  I find that, in relation to both premises, the chance of confrontation with the occupants was very low. This would take away the strongest aggravating factor for the longer sentence reserved for burglary of domestic premises.

23.  For the very low risk of confrontation, I will apply a discount of 6 months from the guideline starting point of 3 years’ imprisonment, resulting in a starting point of 30 months’ imprisonment for each of the two offences.

Aggravating factors

24.  The defendant acted alone in the burglary and the attempted burglary. There had been no damage to property. Only a screwdriver was used as a tool to gain entry into the premises. No property had been stolen in the end.

25.  There are no aggravating features in the circumstances of the commission of the two offences.

26.  There is, however, an aggravating factor in the defendant’s conviction record. There were two previous convictions for burglary. Although they were back in 2010 and 2013, it is undeniable that the defendant is a repeated offender.

27.  For this aggravating factor, I will enhance the sentences in both charges by 3 months, resulting in sentences of 33 months’ imprisonment each. 

Mitigating factors

28.  As for mitigating features, I find that the only one is the defendant’s timely guilty pleas. The defendant is granted the full one-third discount.

29.  The sentences after plea is 22 months’ imprisonment for each of the two charges.

Totality

30.  The two offences took place one after the other. They are not connected. The defendant could have chosen to stop after attempting to burgle the first premises. He did not. He chose to see if there was something to steal in the second premises.

31.  On the other hand, if the sentences of the two charges are to run wholly consecutively, the sentence would be too severe in the circumstances.

32.  Taking a step back, I order that 8 months of the sentence in charge 2 to be served consecutively to the sentence in charge 1, the balance to be served concurrently.

33.  The total final sentence for the two charges is 30 months’ imprisonment.