HKSAR v. SO WAI KI

DCCC 64/2018

[2018] HKDC 961

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 64 OF 2018

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REASONS FOR SENTENCE

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Background

1.  Defendant was convicted on his own plea and agreement to summary of facts to a charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

Agreed facts

2.  According to the summary of facts, PW1, the tenant of a Kweilin Street residential building, left his premises secured by a metal gate and locked by key and padlock.  He used the premises for storage of goods.  There was no door behind the metal gate. 

3.  At 1305 hours on 14 December 2017, defendant was spotted by police loitering and peeping around in the building corridor outside the premises. The officers then observed defendant taking out two pliers with yellow and black handle and a screwdriver with black handle from his shoulder bag. Defendant used these tools to cut the padlock of the premises and to prise open the metal gate.  Later he gained entry to the premises and the officers waited outside. 

4.  Later, defendant stepped out of the premises with a green recycling bag in his left hand and a grey recycling bag in his right hand, in addition to his shoulder bag.  The officers stepped forward and revealed their identity.  Then they subdued the defendant. 

5.  Upon body search of the defendant, the following were found in his shoulder bag:-

(a) a torch;

(b) two pliers with yellow and black handle; and

(c) four screwdrivers.

6.  The officer then arrested the defendant and, under caution, he admitted he entered the premises to look for valuable items to steal because he needed money. 

7.  The two recycling bags carried by the defendant at the time were also found to have the following:-

(a) a Samsung smartphone valued at HK$1,000;

(b) cash of JPY¥550;

(c) 12 watches valued at HK$830;

(d) 6 jade ornaments valued at HK$500;

(e) tableware, namely six spoons, nine knives and two forks;

(f) pearl necklace with box valued at HK$80;

(g) 11 necklaces valued at HK$250;

(h) 43 pens valued at HK$2,500;

(i) 24 wrist chains valued at HK$600;

(j) 34 rings valued at HK$340;

(k) 15 bracelets valued at HK$150;

(l) 10 pendants valued at HK$100;

(m) and a bag valued at HK$5.

Total value of these items is about $6,545.

8.  PW1 confirmed that the above items belonged to him and that damage to the metal gate would cost HK$400 to repair.

9.  In the video recorded interview, defendant said under caution that he lived on  Apliu Street and that he entered the premises as a trespasser and stole therein.

Criminal records

10.  Defendant has 21 previous convictions with 11 relating to theft, of which 4 relating to burglary. 

11.  His criminal records dated back to year 1992.

12.  He was last released from prison on 17 May 2017.

Mitigation

13.  Defendant is aged 39.  He is born in Hong Kong and received education up to Form 1 level.

14.  He is single and lived with his girlfriend in a rented cubicle.

15.  He admitted himself as a drug addict.

16.  He claimed at the time of offence he worked as a delivery worker for a local café, earning HK$5 to 6 thousand dollars per month.

17.  Defendant now says he is remorseful as to what he has done, that he has admitted his guilt at the earliest opportunity in the video recorded interview and since then he said he hoped to amend his ways after release from prison and he asks this court for leniency.

18.  Miss Mak, defence counsel for the defendant, submitted that the offence was not a wellplanned one, that the defendant chose the premises because he could see that there was no one inside.  She asked the court to adopt the sentencing starting point for non-domestic premises of 2½ years and also to afford the defendant one-third sentencing discount in view of his guilty plea.

Discussion

19.  According to section 11(4) of the Theft Ordinance, any person who commits burglary shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 14 years. 

20.  In this case, although the premises in question is a unit in a residential building, the premises itself at the time of the offence was not being used for domestic purpose but for storage purpose.

21.  That being the case, this court considers it appropriate that the sentencing starting point for non-domestic premises for burglary be adopted.

22.  In R v Wong Man, CACC 372/1992, the Court of Appeal suggested a sentencing starting point for non-domestic premises for burglary charge at 2 years and 6 months for a first offender of full age.

23.  In Cheng Wai Kai, CACC 338/2007, the sentencing starting point for sentence in Wong Man was followed and at paragraph 15 of the judgment: 

“The starting point can be adjusted upwards if there are aggravating circumstances such as; (1) the offence is carefully planned and skillfully executed involving the use of heavy equipment or instrument; (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 similar nature; and (6) the offender commits multiple offences.”

24.  Here the defendant was carrying the tools when he went to the premises. The commission of the offence was a planned one, though it cannot be considered as a well planned one. 

25.  Considering the above and the criminal records of the defendant, in particular there are numerous convictions of similar nature, which constitutes an aggravating feature, of which this court will enhance the sentencing starting point by three months, bringing it to 2 years and 9 months.

26.  I have considered all mitigation advanced by defence counsel.  The defendant has pleaded guilty at the first available opportunity.  This is the only and most valid mitigating factor in this case, of which the defendant is entitled to one-third sentencing discount.

Sentence

27.  Accordingly, the defendant is sentenced to 22 months’ imprisonment.