HKSAR v. HO CHI KAN

DCCC 58/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.58 OF 2010

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Reasons for Sentence

1.  The defendant faces 3 charges of burglary and 2 charges of attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap.210 and section 159G of the Crimes Ordinance, Cap.200.

Charge 1: Attempted burglary

2.  It is alleged that the defendant between 26^th-27^th October 2009 attempted to enter as a trespasser part of a building known as Room 104A, first floor, Ban Fung House, Fung Tak Estate, Diamond Hill, with intent to still therein.

Charge 2: Burglary

3.  It is alleged that between 12^th-13^th November 2009, the defendant having entered as a trespasser part of a building known as Room 104A, first floor, Ban Fung House, Fung Tak Estate, Diamond Hill, stole therein 6 boxes containing 36 tins of milk powder.

Charge 3: Burglary

4.  It is alleged that between 16^th-17^th November 2009, the defendant having entered as a trespasser part of a building known as Room 104A, first floor, Ban Fung House, Fung Tak Estate, Diamond Hill, stole therein 5 boxes containing 30 tins of milk powder.

Charge 4: Burglary

5.  It is alleged that between 18^th-19^th November 2009, the defendant having entered as a trespasser part of a building known as Room 104A, first floor, Ban Fung House, Fung Tak Estate, Diamond Hill, stole therein 5 boxes containing 40 tins of milk powder.

Charge 5: Attempted Burglary

6.  It is alleged that on 26^th November 2009, the defendant attempted to enter as a tresspasser part of a building known as Room 104A, first floor, Ban Fung House, Fung Tak Estate, Diamond Hill, with intent to still therein.

7.  The defendant pleaded guilty to all 5 charges, admitted to the summary of facts and was duly convicted.

Facts:

8.  At all material times, PW1 was the owner of a pharmacy. She carried on that business in a shopping mall in Wong Tai Sin while renting Room 104A and 106B on the first floor of Ban Fung House, Fung Tak Estate, Diamond Hill, Kowloon as storerooms for the pharmacy.

In relation to charge 1: Attempted Burglary

9.  At about 9am on 26^th October 2009, pw1 returned to Room 104A for stock checking and left afterwards. Pw1 had secured the wooden door and the rolling gate of the premises and she had also used a metal chain and a padlock to secure the wooden door and the rolling gate when she left.

10.  At about 9:30am on 27^th October 2009, pw1 returned to Room 104A and she found the left side of the frame of the rolling gate had been cut and the wooden door had been kicked open and its handle had been damaged. Pw1 caused a check and found no signs of ransacking and nothing missing. Pw1 made a report to the police. The cost of repair of the damaged properties was about HK$3,000.

In relation to charge 2: Burglary

11.  At about 4pm on 12^th November 2009, pw1 returned to Room 104A for stock checking and left shortly after. Since the lock of the rolling gate and the lock of the wooden door had both been damaged as a result of the events of the previous incident, pw1 only used a metal chain and a padlock to secure the rolling gate and she only closed the wooden door without locking it when she left.

12.  At about 10am on 13^th November 2009, pw1 returned to Room 104A and found that the chain securing the rolling gate had been cut and 6 boxes containing 36 tins of milk powder (totalling HK$7,560) had gone missing. She made a report to the police.

In relation to charge 3: Burglary

13.  At about 6pm on 16^th November, pw1 left Room 104A after checking the stock. When she left, she used 2 chains and a padlock to secure the rolling gate this time and also closed the wooden door but without locking it.

14.  In the morning of 17^th November, pw1 returned to Room 104A for checking. At that time, she found that the 2 chains securing the rolling gate had been cut and 5 boxes containing 30 tins of milk powder totalling HK$3,720 had gone missing. A report was made to the police.

In relation to charge 4: Burglary

15.  At about 2:30pm on 18^th November, a staff of the pharmacy went to Room 104A to retrieve some stock. Before leaving, the staff secured the rolling shutter with a metal chain and a padlock and closed the wooden door.

16.  In the morning of 19^th November, pw1 returned to Room 104A for checking. She found that the metal chain securing the rolling gate had been cut and 5 boxes containing a total of 40 tins of milk powder totalling HK$5,680 had gone missing. A report was made to the police.

In relation to charge 5: Attempted Burglary

17.  On 26^th November, PC34913 (PW3) and his colleague carried out anti-burglary duties in Ban Fung House, Fung Tak Estate, Wong Tai Sin. At about 6:36am, whilst pw3 and his colleagues were hiding in observation on the first floor of the building, pw3 saw a male (later identified as the defendant) holding a brown paper box in his right armpit and carrying a trolley in his right hand approaching Room 104A. PW3 saw the defendant pressing against the entrance of Room 104A with his left hand and looking inside the premises. A few seconds later, the defendant turned around and left with the brown paper box and the trolley.

18.  PW3 intercepted the defendant and revealed his police identity. The defendant was searched and a face mask and a pair of labour gloves was found inside the defendant’s left jacket pocket and front left trousers pocket respectively. PW3 also found a pair of bolt cutters inside the brown paper box which the defendant was carrying. Upon enquiries, the defendant told PW3 that he intended to use the bolt cutters to cut off the padlock of Room 104A in order to go inside to steal milk powder.

19.  PW3 arrested and cautioned the defendant. Under caution, the defendant asked for a chance and stated that he had been unemployed and so he went to Room 104A to steal milk powder. He further stated that he had stolen from Room 104A a few days before and so he returned to steal again this time.

20.  PW1 was informed of the incident by the police and she returned to Room 104A for checking on the same day. Pw1 confirmed that no damage had been caused and that nothing had been stolen.

Video recorded interviews

21.  In the subsequent video recorded interview in relation to charge 1, the defendant said that he brought with him some tools in order to cut off the padlock to gain entry into Room 104A to steal milk powder in the morning of 26^th October 2009. Since it was taking him too long to cut off the padlock, the defendant left without entering and did not therefore steal anything.

22.  In the subsequent video recorded interview in relation to charge 2, the defendant said that he brought with him a pair of bolt cutters, a pair of gloves and a trolley to Room 104A in the morning of 13^th November 2009 and used the bolt cutters to enter Room 104A. Whilst inside, the defendant stole some milk powder and used the trolley to convey them to his car. The defendant then drove to the vicinity of the Sheung Shui Railway Station where he sold the milk powder to the cross-border buyers.

23.  In the subsequent video recorded interview in relation to charge 3, the defendant said that he entered Room 104A in the same way as he did when he committed charge 2 and stole some milk powder again. Just as in charge 2, the defendant drove to Sheung Shui Railway Station where he sold the milk powder for HK$3,000.

24.  In the subsequent video recorded interview in relation to charge 4, the defendant said he used the bolt cutters to cut off the metal chain and gained entry into Room 104A in the morning of 19^th November. He stole some milk powder from the premises, put them in his car and drove to Sheung Shui where he sold the milk powder for about HK$1,000 to 2,000. The defendant spent all the proceeds.

25.  In the subsequent video recorded interview in relation to charge 5, the defendant said that he had intended to enter Room 104A to steal milk powder but found that the rolling gate had been replaced and it was impossible for him to enter Room 104A and so he left. He was then arrested by the police when he left.

Previous convictions

26.  The defendant has one spent previous conviction for theft in January 1999 when he was fined $500.

Mitigation

27.  The defendant is 39, he and his 35 year old wife and 7 year old daughter live together in Tuen Mun. The defendant received education up to secondary F.3 level, thereafter working as air conditioning apprentice and transportation worker. The defendant had been unemployed since October 2009.

28.  Mr. Ip for the defendant pointed out that but for the defendant’s voluntary assistance in the disclosure of his commission of the other 4 offences, the police might have some difficulty in bringing charges on them, let alone obtaining convictions out of the charges.

Sentencing authorities

29.  It is not disputed by the prosecution that the offences should be properly categorized as non-domestic premises burglary. The proper starting point in a case of burglary of non-domestic premises in the absence of aggravating or mitigating factors is 2 years and 6 months’ imprisonment: R v Wong Man [1993] 1 HKC 80 and Secretary for Justice v Tsang Hon-yin AR 5/2004.

30.  In relation to commission of multiple offences, the court in AG v Lui Kam-chi [1993] 1 HKC 215 said this,

“7. In relation to multiple offences, the proper approach, which was not disputed by Mr Jimmy Kwong for the respondent, was stated by Barker J.A. in The Queen v Tong Hoi-fung [1988] 1 HKLR 610 at 611 I-J in the following way :

"This Court has said time and time again that where there is more than one offence of a similar nature committed at different times it is right for the court to award a higher sentence than if there had been only one offence. We cannot accede to Mr Forrest's submission that we should treat the sentences concurrently,..."

The offences were committed in different premises against different victims on different dates. Clearly they cannot be regarded as part of the same transaction. We can see no justification for concurrent sentences.”

Sentence

31.  The fact that the defendant had repeatedly returned to the same premises to burgle or attempt to burgle is an aggravating factor.

32.  I will adopt a starting point of 2.5 (30 months) years’ imprisonment for each of the offences, reducing each sentence to that of 20 months’ imprisonment in recognition of the defendant’s guilty plea. Having considered the authorities and the principle of totality, given the fact that the defendant repeatedly and over the period of one month burgled the same premises, I will order that 2 months of each of the sentence of charge 2 to charge 5 be served consecutively to that of charge 1, while the rest of the sentences to be served concurrently. The total sentence at this stage would therefore be 20+8=28 months’ imprisonment. I agree with Mr. Ip’s submission that but for the defendant’s full cooperation, the police might not have been able to solve the other 4 burglaries so easily and I think the defendant deserve some credit for this. I will reduce the defendant’s sentence by a further 3 months to reflect the said assistance he rendered the police. The total sentence of the defendant in relation to all 5 charges is therefore 25 months’ imprisonment.