HKSAR v. NG SUN MING

DCCC328/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 328 OF 2009 

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Reasons for Sentence

1.  The defendant pleaded guilty to one charge of burglary.

2.  In sentencing, I take into account the whole circumstances of the case including its nature and facts, personal background of the defendant and mitigation put forward on his behalf.

3.  I also have had regard to sentencing precedents.

4.  The facts of the case are simple.  It took place in a temple in Yuen Long.  The temple was closed at 6.30 pm and its main door was locked.  At about 4 am on the following day, a staff who was sleeping in a room in the temple was waken up by a sound coming from the roof.  She informed her employer.  When the employer arrived, he found the defendant searching for something at the altar of the temple.  He made a report to the police.  When the police arrived, they arrested the defendant who was trying to escape.  Stolen properties as listed in the charge were found on his person. 

5.  Under caution, the defendant admitted to have entered the temple through a gap in the metal fence at the rooftop which he had created by using a jack and stolen properties inside the temple. 

6.  The defendant is 50 years of age.  He had only received education up to Form 1 and had worked as a welding worker in a construction site.  I was told that he lost his job due to his age.  He got married 5 years ago with a lady still living in the mainland.  His parents are now living in the United States.

7.  I was told that the defendant has been suffering from depression for over 4 years and was receiving medication.  On the day of the incident he could not sleep and went out for a walk.  When he came to the temple for unknown reasons he did what he did.  Upon enquiry, learned defence counsel confirmed that the defendant had the necessary mens rea for the offence at the  material time.  I was told that the defendant was remorseful and intended to turn over a new leaf.  He planned to make arrangement upon his discharge from prison for his parents and wife to come and live with him.

8.  The defendant is not a first offender.  On 13 previous occasions he was convicted of a total of 20 offences, 10 of which were theft related.  The first offence he committed was back in 1972 which was an offence of burglary.  The last conviction was for an offence of attempted theft for which he was convicted on 10 June 2005.  For that offence, he was sentenced to 6 months’ imprisonment. 

9.  Learned defence counsel stressed that the defendant had only committed three offences of burglary before and all were committed more than 20 years ago. 

10.  The facts reveal that someone was living in the temple.  However, there is nothing to indicate that this fact was obvious to others.  In all the circumstances, I agree with learned defence counsel that I shall sentence the defendant on the basis that this is a case of burglary in non-domestic premises.  In an ordinary case of such nature, a starting point of 2½ years for a first offender should be considered.  I also take into account the fact that the defendant came equipped with a jack though there is no evidence to rebut his assertion that he had only picked it up at a nearby garbage collection point.  The criminal conviction record is a matter not to be ignored.

11.  In all the circumstances, I am of the view that an immediate custodial sentence is inevitable and a starting point of 3 years is appropriate.  The defendant pleaded guilty, he is entitled to a one-third discount for this factor. 

12.  Having considered the whole circumstances including  mitigation submission, I am of the view that this is the extent of discount the defendant is entitled to.  I therefore sentence the defendant to 24 months’ imprisonment.