HKSAR v. MA Ho

DCCC 439/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 439 OF 2016

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REASONS FOR SENTENCE

1. The defendant pleaded guilty to a charge of "Burglary". He burgled a residential unit in Yau Ma Tei and tried to steal 3 chargers.

Summary of Facts

2. Madam CHENG (PW1) resided at the address particularized in the Charge ("the Room"), which is situated on the 2^nd Floor of a building.

3. About 12:30 p.m. on 23 April 2016, PW1 left the Room without locking its door.  She returned about 20 minutes later and saw the defendant in the Room, holding a white charger in his right hand and ransacking her drawer with his left land.  PW1 immediately grabbed the defendant's left hand and asked what he had stolen.  He did not answer.

4. PW1 noticed something protruding from the defendant's right front trouser pocket. She questioned the defendant again what he had stolen.  The defendant then took out 1 black charger and 1 silver charger from his pocket.  All 3 chargers belong to PW1 and they were originally placed in the drawer ransacked by the defendant.

5. The defendant placed all 3 chargers on the refrigerator and tried to flee.  PW1 grabbed his collar to stop him from leaving.  The defendant said to PW1 "I have returned the items to you.  Release your hands."  PW1 took out her mobile phone to call 999 and continued to struggle with the defendant.  Their struggle alerted a neighbour Madam CHAN (PW2), who came to offer assistance. PW1 passed her mobile phone to PW2.  She reported the case to the Police.

6. PW1 kept struggling with the defendant until they reached the pavement outside the building.  A staff member of a nearby property agency helped PW1 to intercept the defendant.

7. The Police soon arrived and arrested the defendant.  Under caution, he admitted that he wanted to steal something to sell since he had no money for meals.

8. In his video recorded interview, the defendant stated that he could enter the Room since its door was not locked.  He intended to steal mobile phones to sell, but he stole nothing.

Mitigation & Sentence

9. The defendant is 59 and single. He has 4 conviction records, which included 1 "Burglary" offence (dated 2008) and 2 "Theft" offences. Defence solicitor Mr. CHAN informed me that the defendant has not worked for more than 15 years; he relies on social welfare. A medical report of the defendant was placed before me. It appears that he has a medical history of Anxiety since 1986.

10. In mitigation, Mr. CHAN submitted that the defendant committed the present offence out of greed. He owed people money and had no money for meals. Mr. CHAN highlighted that the entrance of Lai Shing Building was always open and that the door to Flat C, 2^nd Floor was not locked. The defendant was thus an opportunistic burglar and deserves a lower than usual starting point. Finally, Mr. CHAN submitted that the defendant did not use any weapons, force or tools. No injuries were caused and PW1 suffered no loss.

11. Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. There is sufficient social welfare protection in modern Hong Kong for the poor to meet their basic needs (including food). Being a welfare recipient, the defendant must have known how to seek help.

12. I do not accept that the defendant was an opportunistic burglar. The facts in the present case are distinguishable from those in HKSAR v LAW Tin Yam CACC 258/2010 submitted by Mr. CHAN. Unlike the applicant in LAW Tin Yam, the defendant was not a next door neighbour of PW1. In fact, he did not even live on the same floor or in the same building with PW1. I need not speculate on how he found out the entrance of Lai Shing Building was always open and the door to Flat C, 2^nd Floor was not locked; suffice it for me to say that his presence at the Room, the flat and the building was certainly not by chance. Furthermore, I have no doubt that PW1 was alarmed by the defednant's presence at her home. She even had to struggle with him until he was subdued.

13. The normal starting point for domestic burglary is 3 years' imprisonment. Bearing in mind all relevant factors (including the defendant's age and background as well as the value of the 3 chargers), I have decided to temper justice with mercy by adopting a slightly lower starting point of 2.5 years' imprisonment. With the guilty plea, the sentence is reduced to 20 months.

14. The defendant is in breach of a suspended sentence of 2 months' imprisonment in KCCC 397/2016. He was just sentenced in that case in January 2016 for a "Theft" offence. Yet, he committed the present offence in April 2016. I have no choice but to activate the entire suspended sentence. And notwithstanding the totality principle, he shall serve that 2 months consecutive to the sentence in the present case.