HKSAR v. NGAI HON

DCCC437/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 437 OF 2012

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Reasons for Sentence

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Charges

1. The defendant faced seven charges of burglary and one charge (Charge 8) of attempted burglary.

2. He pleaded guilty to and was convicted of Charges 1, 2, 4, 6, 7 and 8.

3. Charges 3 and 5 were then left on the court’s file and not to be proceeded with without the court’s leave.

The facts

4. The facts of the case can be summarised as follows.

Charge 1

5. PW1 resided at Room H, 3rd Floor, Ming Tak Building, No.4 Ping Fu Path, Kwai Chung, New Territories (“Premises A”) with her family.

6. On 6 January 2012 at about 1040 hours, PW1 found a male entered Premises A through a window in the sitting room.  PW1 screamed and the male fled.

7. The fingerprints lifted by the police from the inside of the window frame in the sitting room matched with that of the right ring finger and the right little finger of the defendant.

Charge 2

8. PW2 was the manager of East Harbour Seafood Restaurant on 1st Floor, No.48 Hung To Road, Kwun Tong, Kowloon (“Premises B”).

9. On 16 January 2012 at about 2330 hours, PW2 left Premises B.

10. On 17 January 2021 about 0930 hours, PW2 returned to Premises B for work and found that a computer at the cashier counter was abandoned on the ground near the rear entrance.  There were prise marks at the drawers of the cashier counter.  Eleven bottles of wine were missing from the wine cabinet.

11. The fingerprint lifted by the police from the bottom of the computer matched with that of the left ring finger of the defendant.

Charge 4

12. House of Corona was a commercial building located at No.50 Hung To Road, Kwun Tong, Kowloon (“House of Corona”).

13. Room 408 (“Premises C”), Room 409 (“Premises D”) and Room 435 (“Premises E”) of House of Corona were on the same floor and were interconnected at the decoration ceiling.  A person could crawl from one unit to another through the decoration ceiling.

14. There was scaffolding outside House of Corona.

15. PW4 was one of the personnel of Premises D.

16. On 20 January 2012 at about 1700 hours, PW4 locked the door of Premises D and left.

17. On 27 January 2012 at about 1030 hours, PW4 returned and found that Premises D were ransacked.  Cash of about $490 was missing from a box in a cabinet.  A piece of the decoration ceiling was moved.

18. The police found two fingerprints on the outside of a desk drawer and one of them matched with that of the right thumb of the defendant.

Charge 6

19. On 27 January 2012 at about 1700 hours, PW4 locked the window and the door of Premises D and left.

20. On 1 February 2012 at about 1440 hours, PW4 returned and found that Premises D had been ransacked.  One desktop computer and cash of $7.20 were missing.  A piece of the decoration ceiling was moved.

21. The fingerprints lifted by the police from the glass top of the desk matched with that of the left palm of the defendant.

Charge 7

22. PW5 was the manager of Premises E.

23. On 30 January 2012 at about 1900 hours, PW5 locked the window and the door of Premises E and left.

24. On 1 February 2012, PW5 returned and found that Premises E had been ransacked.  One notebook computer, one game machine, one USB device and one camera (Exhibit 1) were missing.  A piece of the decoration ceiling was found not being completely in place.

25. The fingerprints lifted by the police from the bottom of another notebook computer matched with that of the right ring finger of the defendant.

Charge 8

26. On 4 February 2012, police officers conducted an anti-burglary operation at the adjacent building of House of Corona.

27. At about 0040 hours, they saw the defendant appearing at the podium of the adjacent building.

28. He climbed up the scaffolding outside House of Corona and tried to open the window of Premises C from outside but failed.

29. He then climbed down the scaffolding and got back to the podium.

30. The police officer intercepted the defendant. Upon search, Exhibit P1 was found in the defendant’s bag.

31. The defendant admitted:

(1) that he stole Exhibit 1 from House of Corona;

(2) that he intended but failed to enter Premises C to steal as the window was locked;

(3) that as he is short of money, he committed burglary at the House of Corona; and

(4) that he used the rear staircase of the adjacent building to get to the podium. He then climbed the scaffolding at House of Corona. Having opened a window, he gained entry to the premises to steal.

The defendant’s background and mitigation

32. The defendant, aged 28, has a clear record.

33. He was born in Shanghai.  Very soon after his birth, his mother deserted the family.  It was the defendant’s father who had brought him up, but eventually he lost contact with his father.

34. The defendant used to be a workman of a newspaper agency, earning $5,000 per month.

35. Unfortunately, after he had lost his job and had exhausted his savings, he foolishly decided to steal by entering into the poorly guarded premises.

36. The defendant expressed his remorse by pleading guilty to the offences in this case.

Guidelines in sentence of burglary

37. The subject premises in Charge 1 were domestic premises.

38. The Court of Appeal in Chan Yui Man, CACC 36/1988, laid down general guidelines of sentence for burglary of domestic premises.  It was held that 3 years’ imprisonment was the proper starting point for a first offender of full age in domestic burglary.

39. The remaining five charges concerned burglary at commercial premises.

40. The Court of Appeal in R v Wong Man [1993] HKC 80 laid down a general starting point for burglary in non-domestic premises to be 2½ years’ imprisonment on a first offender of full age.

41. It is noted that the defendant was a lone criminal.

42. No forcible entry occurred in these cases.

43. There was no evidence indicating that tools were used to facilitate the stealing, except the case in Charge 2.

44. The court accepted that these cases were not the worst kind of burglary.

Starting point and sentence on each charge

45. Having considered all the circumstances of the case and that of the defendant, the mitigation advanced by his lawyer, the guidelines laid down by the Court of Appeal, this court would adopt a starting point of 36 months for Charge 1 and 30 months each for the remaining five charges.

46. The defendant is entitled to one-third discount for his plea, so as to reduce the sentences to 24 months and

Consecutive or concurrent sentences?

47. The defendant has committed offences of a similar nature at different times.

48. The burglary in Charges 4, 6, 7 and 8 were committed in the same building, though on different days and in different units.

49. This group of offences arises out of the same set of facts and were interconnected with one another.

50. The evidence indicated that the defendant gained entry through the broken window of Premises C.  He then crawled through the decoration ceiling from one unit to another.

51. Under such circumstances, concurrent sentence would be deemed proper in these four charges.

52. Nevertheless, offences in Charges 1 and 2 were totally unrelated to each other.  They were distinct and separate offences of burglary committed at different times.  They could not be considered to have been committed in the course of a single transaction.

53. As a matter of sentencing principle, consecutive sentences are, therefore, called for.

54. However, this court has also to consider not only the overall criminality of the offences and the culpability of the defendant, but also the totality principle, in order to achieve an appropriate totality of sentence.

55. Consequently, this court would impose sentences to run partially consecutive and partly concurrent on certain charges.

Sentences

(1) The sentences of 20 months each on Charges 4, 6, 7 and 8 are to run concurrently.

(2) 6 months of the 24 months’ imprisonment sentence on Charge 1 should run consecutively to the sentences on Charges 2, 4, 6, 7 and 8.

(3) 6 months of the 20 months’ imprisonment sentence on Charge 2 should run consecutively to the sentences on Charges 1, 4, 6, 7 and 8.

(4) The remainder are to run concurrently.

(5) The defendant has to serve 32 months’ imprisonment in totality.