HKSAR v. WONG WING FUNG

DCCC 392/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 392 OF 2012

____________________

BETWEEN

____________________

____________________

Reasons for Sentence

____________________

Introduction

1.  The defendant is convicted on his own plea of burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance (Cap 210).

Facts

2.  On 26 March 2012, PC50015 (“PW1”) set up an observation post at the rooftop of the building located at Nos.74-84 Sai Yeung Choi Street South, Mong Kok, Kowloon.

3.  At about 6 pm on the same day, PW1 saw the defendant appear at the rooftop of the residential building located at Nos.66-68 Sai Yeung Choi Street South, Mong Kok, Kowloon (the “Building”). The defendant went to the edge of the Building’s rooftop and extended his head to check out the flats below. He then went over to the rooftop of the adjacent building and climbed down the scaffolding outside that adjacent building. PW1 put the defendant under close observation.

4.  Soon afterwards, the defendant climbed up the scaffolding, reached the rooftop of the adjacent building and returned to the Building’s rooftop. He then entered the staircase of the Building and went downstairs.

5.  PC10646 intercepted the defendant at the ground floor of the Building. Upon inquiry, the defendant admitted that he lived in Tsuen Wan and did not live in the Building. PW2 arrested and cautioned the defendant. Under caution, the defendant admitted inter alia that he went to the Building to see if there was anything he could steal, and that he left the Building because he could not find anything to steal.

The defendant’s previous conviction record and antecedents

6.  The defendant has 27 previous convictions – 2 convictions of burglary respectively sentenced in 1983 and 2008, 9 convictions of theft from 2005 to 2011, 2 convictions of attempted theft respectively sentenced in 2005 and 2007, 1 conviction of going equipped for stealing sentenced in 2005 and 2 convictions of loitering respectively sentenced in 2007 and 2010. His last conviction was theft sentenced on 30 August 2011, and he was released on 19 November 2011. Four month and a week later, on 26 March 2012, he committed the present offence.

7.  The defendant was born in December 1969 and is now 42. He has received education up to Form 1 level. He used to be a logistic worker and a waiter.

Mitigation

8.  In mitigation, Mr Yip agreed that the usual starting point for this type of offence, i.e. burglary of domestic premises, was 3 years’ imprisonment.

9.  Having referred me to HKSAR v Tsang Kai On CACC79/2010, Mr Yip submitted that the defendant was originally arrested for the offence of loitering, and that but for the defendant’s admission under caution, there might not be sufficient evidence to proceed with the charge of burglary against him. Mr Yip therefore relied on HKSAR v Tsang Kai On and submitted that this court should give the defendant a further discount on the ground that he was genuinely remorseful.

10.  A letter from the defendant was also submitted to this court asking for leniency.

Discussion

11.  I disagreed with Mr Yip’s submission that but for the defendant’s admission, there was insufficient evidence to proceed with the charge of burglary. As revealed from the facts admitted by the defendant, his behavior was observed by PW1. The defendant’s conduct, including extending his head to check out the flats below the rooftop and climbing down the scaffolding outside the adjacent building, show that he was there with intent to steal. Indeed, unlike HKSAR v Tsang Kai On in which the applicant was arrested by the police in August 2009 when the two charges of burglary were committed in January and March 2009, the defendant in the present case was arrested by the police on the same day almost on the spot. I therefore do not consider the defendant can earn any further discount for his admission made to the police under caution. That said, I will give him 1/3 discount for his guilty plea.  

Sentence

12.  In burglary of domestic premises, 3 years’ imprisonment is the proper starting point for a first offender of full age: R v Chan Yui Man CACC 36/1988, R v Chan Wing Ching CACC 100/1991, R v Luk Wai Kit CACC 99/1992, R v Wong Man CACC 372/1992, Attorney General v Lui Kam Chi [1993] 1 HKC 215 and HKSAR v Lau Pang [2004] 3 HKLRD 565. However, the defendant in the present case is not a first offender of burglary cases.

13.  In HKSAR v Cheng Wai Kai [2008] HKCU 932 in which the appellant was charged with four counts of burglary and one count of attempted burglary, Yeung JA (as he then was) said:

“The starting point can be adjusted upwards if there are aggravating circumstances such as (1) the offence is carefully planned and skilfully executed involving the use of heavy instruments or equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous convictions of a similar nature, and (6) the offender commits multiple offences”

The present case is aggravated by the defendant’s previous convictions of dishonesty related offences, particularly his two convictions of burglary.

14.  Having carefully considered the facts of this case, the mitigation submitted by Mr Yip, the aggravating feature against the defendant I have identified and the sentencing authorities I have mentioned, I adopt a starting point of 3½ years’ imprisonment.

15.  One-third discount is given to the defendant for his guilty plea, thus reducing the sentence to 28 months’ imprisonment. There being no further valid mitigating features justifying further reduction in sentence, the defendant is sentenced to 28 months’ imprisonment.