HKSAR v. HO CHI KWAN

DCCC248/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 248 OF 2012

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Reasons for Sentence

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1.   The defendant pleaded guilty to three charges:

(i) Burglary;

(ii) Resisting a police officer in the due execution of his duty; and

(iii) Assaulting a police officer in the due execution of his duty.

Admitted fact

2.   The facts admitted by the defendant are as follows.

3.   Chen Rong (PW1) was a saleslady at Man Shing Decorating Materials, Ground Floor, No.222 Lai Chi Kok Road, Shamshuipo, Kowloon (the premises).  On 17 January this year, at about 1145 hours, PW1 locked the roller shutter at the front door of the premises before she left.  The rear door of the premises was also locked.    

4.   At about 1220 hours, PC9300 (PW2) and another police officer was on patrol in Shek Kip Mei Street, saw the defendant looking around at the rear lane of No.222 Lai Chi Kwok Road (the rear lane) before he climbed into the premise through a gap above the rear door of the premises.  PW2 alerted the other colleagues. 

5.   At about 1239 hours, police officers located PW1. PW1 opened the roller shutter at the front door of the premises.  PC9308 (PW3) pulled up the roller shutter to a height of about one metre, PC34841 (PW4) then announced their police identity.  The defendant then swung a metal rod at PW4 across the opening under the roller shutter but PW4 managed to retreat in time.  The defendant then dropped the metal rod and fled through the rear end of premises.

6.   PW2 saw the defendant at the rear lane and gave chase.  He intercepted the defendant in the rear lane, but the defendant turned around and pushed PW2 away.  He then struggled with PW2 and suffered minor injuries. 

7.   The defendant was subsequently subdued by PW2 and another police officer.  The defendant was arrested and cautioned by PW3. Under caution, the defendant admitted that he had entered the premises to steal the air-conditioner because he did not have enough money.  He further admitted that he had assaulted PW2 in order to escape. 

8.   PW1 inspected the premises and found that the premises had been ransacked.  A drawer at the cashier counter was opened, the electric cable of the air-conditioner was broken, and the face plate of the air-conditioner had been dismantled and placed on the around.

9.   Subsequently, in a video recorded interview, the defendant admitted that he had climbed into the premises to see if there was anything to steal.  He then saw the air-conditioner in the premises.  He broke the air-conditioner cable with his hands because he intended to steal and sell it.  He then intended to escape but he saw police officers.  He had struggled with a police officer and might have harmed him.

The defendant’s background and mitigation

10.   The defendant is aged 41.  He is married but is now going through a divorce because of the present incident.  He lives with his elderly parents.  He has 10 previous convictions, none of which are similar to the present offences. 

11.   Counsel submitted that the defendant is very remorseful which is indicated by his guilty plea.  His divorce is already a severe punishment and urges the court to be lenient.

Reason for sentence

12.   I have considered the facts of this case, defendant’s background and his mitigation very carefully.  I agree with counsel that the defendant’s guilty plea is his biggest mitigation.  The standard tariff for burglary of non-domestic premises is 2 years and 6 months.  I see no reason to depart from that tariff. 

13.   I adopt a starting point of 30 months for Charge 1, I give the defendant full credit for his guilty plea.  The sentence is reduced to 20 months.  For Charge 2, the defendant actually tried to attack the police officer with a metal rod and it was fortunate that the officer avoided the attack in time.  In Charge 3, the defendant had assaulted the police officer and had caused minor injuries. 

14.   Attacking a police officer in the due execution of his duties is a very serious offence.  Unless there are exceptional circumstances, the normal sentence is an immediate custodial one.  For both Charges 2 and 3, I adopt a starting point of 6 months and I give the defendant full credit for his guilty plea, the sentences are reduced to 4 months.  Charges 2 and 3 are part and parcel of the defendant’s attempt to flee.  I order that the sentences on those two charges be served concurrently.  However, 2 months of the sentences for Charge 2 and 3 will be served consecutively to Charge 1.  That is a total sentence of 22 months.