HKSAR v. PANG KA HO

DCCC 249/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 249 OF 2015

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REASONS FOR SENTENCE

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1.  Defendant, you pleaded guilty before me this morning to a single charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. The particulars of offence avers that you on 16 October 2014:-

“...in Hong Kong, having entered as a trespasser part of a building known as 1st Floor, No. 43C Fuk Wing Street, Sham Shui Po, Kowloon, stole therein one tablet computer, one notebook computer, one camera and four watches.”

Facts

2.  The facts of the case which you have admitted in the Summary of Facts discloses a straightforward domestic burglary case.  At around 7 am on 16 October 2014, the occupant of the premises named in the charge, one Mr Leung, left his residence and locked the main gate, the wooden door and the windows of the flat before leaving the premises. 

3.  Later, when Mr Leung returned in the evening at around 7 pm, he found that the wooden door of the premises had been prised open and there were signs of ransacking inside.  The items named in the charge have confirmed to be missing with a total value of around $22,200.

4.  According to Mr Leung, most of the items of the stolen properties were placed inside an iron rack beside his bed in the bedroom with the exception of only a camera which was placed inside a travel bag under the same iron rack. 

5.  During the investigation, one fingerprint mark on the main gate and one palm print mark on the wardrobe inside Mr Leung’s bedroom were lifted. Upon examination, the fingerprint mark and the palm print mark were confirmed to be yours.

6.  Mr Leung confirmed that he was not acquainted with you, and it was on this basis that the charge was made by the prosecution against you.

7.  After you were arrested on 17 February 2015, a video-recorded interview was conducted in which you claimed that you had visited the 4^th floor of the relevant building between December 2014 and February 2015.  However, you denied having entered the flat.

8.  Before I convicted you, I had clarified with you and you confirmed that by tendering your plea of guilty, you accepted that you had in fact entered into the premises on the date in question and stole the properties as named in the charge.

The criminal records and the antecedents

9.  Defendant, you are now aged 36.  In the past, you had six appearances in courts between 1993 to 2011 involving eight offences.  In particular, there are two similar burglary records, one in 1993 and one in 2001, and also another two records involving dishonesty.  That is, one theft in 1993 and also another theft in 2011.  In your last conviction of burglary in 2001, you were sentenced by the District Court to a period of 21 months’ imprisonment. 

10.  You received an education up to Primary 6.  At the time of the arrest, you were unemployed and you were not a CSSA recipient.  You are single.  You have other family members, namely a father and also an elder sister but you rarely make contact with them. 

Mitigations

11.  In mitigation, Mr Philip Li, your solicitor, had informed the court that the reason why you committed the present offence is because of your greed and also because of your economic difficulties.  Mr Li told me that before you were unemployed, you used to work as a construction worker earning about $10,000 a month.  Mr Li told me that in the few months before this offence, you had acquainted with a girlfriend and you wanted to buy her things but you had no money and that was why you resorted to commit the present offence.

12.  Mr Li also told the court that at the time of the offence, you had made use of a key which was able to open the metal gate of the premises in question.  Mr Li, however, was unable to inform the court as to how you obtained this key.  Upon enquiry, I was informed that Mr Leung in fact had a habit of placing the keys of the metal gate as well as the wooden door inside a pair of shoes which was placed outside the premises but the said two keys were found missing two weeks before the offence.  That is only tendered by the prosecution as an information to the court, and of course I understand that this is not a part of the admitted Summary of the Facts.  As I said, Mr Li has informed the court that you have declined to inform him further as to how you came across those keys.

13.  Mr Li also submitted to the court a handwritten letter written by you.  In this letter, you had expressed your remorse and also to your willingness to compensate the victim of this case.  You ask the court to be as lenient as possible so that you can go back to the society as soon as possible.  Mr Li confirmed, however, that regardless of your wish to compensate Mr Leung, you have no mean to repay him in the near future.

Sentencing considerations

14.  In sentencing you, defendant, I have taken into account the mitigation put forward by Mr Li, the facts of this case and also your criminal records.  The present case, as I have said earlier, is a domestic-premises burglary.  The Court of Appeal has laid down clear guideline for the sentencing for this type of offence.  According to the Court of Appeal, 3 years is the proper starting point for a first offender of full age in a case of domestic burglary (see HKSAR v Lau Pang [2004] 3 HKLRD 565).

15.  Defendant, you are not a first offender.  In the past, you had altogether four records of dishonesty involving, as it were, two similar burglary records although the first one was already in 1993.  As I said, I am still in the dark as to how you obtained the keys in this case in relation to the burgled premises but it is clear to me that you are not just an opportunist even if the keys were just found by you somewhere near the premises.  In fact, the keys could only open the metal gate and not the wooden door.  According to the facts, to which you have admitted, the wooden door of the flat had been prised open. 

16.  Therefore, I can identify two aggravating factors here as illustrated in the case in HKSAR v Cheng Wai Kai (unreported) CACC 338 & 339/2007.  These two aggravating factors were firstly, that the offender is a professional burglar and not just an opportunist; and secondly, the offender has previous convictions, particularly previous convictions of similar nature. For these two aggravating factors, I will add 3 months to each factor, making the total starting point before reduction one of 42 months’ imprisonment.

17.  The court must stress that it can never accept any economic reasons for committing an offence.  You know it too well that you cannot solve your economic problem by committing crimes.  The only effective mitigation in your case is your plea of guilty, to which you will be entitled to the full one-third discount. 

18.  After the deduction, which is 14 months, defendant, for this offence, you are sentenced to 28 months’ imprisonment.