HKSAR v. CHAN TIN MING AND ANOTHER

DCCC 205 & 298/2014(CONS)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 205 & 298 OF 2014 (CONS)

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Reasons for Sentence

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1.  The 1st defendant has pleaded guilty to one charge of burglary (the second charge). The 2nd defendant has pleaded guilty to two charges of burglary (namely, Charges 1 and 2). They have both admitted the facts of these burglaries and I have convicted them accordingly.

2.  On the first charge, the facts show that the offence occurred between 9.25 am and 4.30 pm on 3 July 2013 at a Flat A on the 5th floor of Yen Chi Building on 27 Kowloon City Road in Kowloon.  The flat was left secured.  Entry was gained by prising the wooden door.  The flat was ransacked.  Properties were taken, as particularised in the indictment.  These amounted in value to a figure over HK$30,000.

3.  An item was clothing was found, with bloodstains on it.  They were later found to be the 2nd defendant’s bloodstains and this led to his arrest for this offence on 24 February 2014.

4.  Prior to this on 30 December 2013, the 1st and 2nd defendants had committed the burglary in the second charge together.  This occurred between 7.15 am and 3.23 pm to a flat on the 5th floor of Kan Kin Building, Yuen Long in the New Territories.  The premises were left secured.  Entry was gained by prising the iron grille and wooden door of the premises.  Items valued at $28,100 were taken.

5.  The defendants were apprehended later by police in a taxi.  They were seen to have exited from the Kam Kin Building carrying nylon bags which contained the items taken in the burglary.

6.  Under caution, both defendants admitted committing the burglary and also that the items in the nylon bags were the items taken during the burglary.

7.  These admissions were confirmed in subsequent video recorded interviews, where they also added that they resided in Mainland China and had agreed to commit a burglary in Hong Kong; that they entered Hong Kong from Mainland China on 30 December 2013; D1 had acted as lookout and D2 had entered the premises.

8.  I say these facts clearly establish the offences charged and I convicted the defendants on the basis of those facts.

9.  The defendants’ antecedents were admitted. 

10.  The 1st defendant is now aged 54.  He finished primary school education in the Mainland.  He has worked as a technician in a weaving factory and also construction work.  He has two daughters and a son, who are all adults. 

11.  As far as his criminal convictions, he has three previous recorded convictions for aggravated burglary or burglary.  These were offences committed in 1990, 1992 and 1995.  The defendant received sentences of 2 years 8 months’ imprisonment in 1992 and what would appear to be a total of about 2 years and 8 months’ imprisonment in 2009 when he was sentenced for the offences committed in 1995.  Although the defendant was convicted in 2009, his last recorded offences were committed in 1995, save for one offence of failing to custody in 2009.

12.  The 2nd defendant is aged 35.  He is described as single and living alone in an apartment house in Shenzhen.  He has three recorded previous convictions.  The relevant convictions:  in 2002, he was convicted of burglary and received a sentence of 2 years’ imprisonment.

13.  As far as the defendants’ mitigation are concerned, both defendants have pleaded guilty.

14.  The offences were committed at a time when it was perceived by the defendants that the flats would be empty, so it would be unlikely they would meet anybody.

15.  Both defendants attribute the commission of the offences to some financial difficulty that they have experienced.

16.  The 2nd defendant has provided a letter, in which he shows remorse.  It also describes that he wishes to be released at some point to assist his girlfriend who is ill.

17.  Now, as far as sentencing is concerned, the guideline sentence for a domestic burglary, the starting point for sentence for a person of clear record on a plea of guilty would be a starting point of 3 years’ imprisonment.

18.  Both defendants have previously been convicted of offences of burglary:  the 1st defendant for offences back in 1995 and the 2nd defendant for an offence in 2002.

19.  I do not consider, in respect of either defendant, their previous similar offending is of sufficient nature to justify aggravating or increasing the starting point.

20.  Certainly, in respect of each defendant, for each charge they face and have pleaded guilty to, I will adopt a starting point for sentence of 3 years’ imprisonment.

21.  This will be reduced to account for their plea of guilty to a sentence of 2 years’ imprisonment.

22.  So, on Charge 1, the 2nd defendant is sentenced to 2 years’ imprisonment and on Charge 2 the 1st and 2nd defendants are sentenced to 2 years’ imprisonment.

23.  For the 1st defendant, that, of course, is his sentence.  He faces only one charge.

24.  For the 2nd defendant, he has two charges to consider, committed on different dates, so these sentences are eligible to be served consecutively.

25.  Having regard to this offence, I have to consider also the overall appropriate totality of sentence for this defendant.

26.  Having considered this, I will order 6 months of the first charge to run consecutively to the second charge.  The balance will be run concurrently. 

27.  This gives an overall sentence for the 2nd defendant on both the charges he faces of 2 years and 6 months’ imprisonment.

(T Casewell) District Judge