HKSAR v. CHUK KWOK FUNG

DCCC138/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 138 OF 2012

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Reasons for Sentence

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1. The defendant pleaded guilty to one count of non-domestic burglary and was convicted accordingly.

The Prosecution case

2. The burglary took place at a restaurant called KIYA Japanese Dinning Bar situated at Shop B, Ground Floor, Tsuen Nam Road, Tai Wai, Shatin.  At about 11:20 pm on 6 May 2011, a staff of the restaurant secured the front and rear roller gates and then left the restaurant. 

3. At around 9:30 am on 7 May 2011, another staff of the restaurant, Chan Chi-biu, returned to the restaurant and found signs of ransacking.  The cashier register, which was originally placed at the cashier cabinet, was moved to the customer seat area near the rear entrance of the restaurant. 

4. There was no sign of prizing on the roller gates of both entrances.  PW1 Wong, the owner of the restaurant, returned to the restaurant soon and found the drawer of the cashier cabinet was prized open and cash of $11,000 was found missing.  In addition, a bottle of Japanese wine and a pair of sports shoes with the total value of about $850 were missing.  A report to the police was made.

5. The CCTV in the restaurant captured a male entering the restaurant through the front entrances at about 11:45 pm on 6 May 2011.  He left the restaurant at 12:08 am on the following day.  The face and the clothing of that male could not be seen clearly.

6. However, police found one fingerprint on the drawer of the cashier register which was placed on the customer seat. The fingerprint was found to be the left thumb print of the defendant.  The defendant was not the employee of the restaurant.

Mitigation

7. The defendant is now 33 years old and could be regarded as a persistent offender.  As far as the present offence is concerned, the defendant had no previous burglary convictions before he committed the offence on or about 6 May 2011.  The defendant had convictions of the burglary offences on 28 July 2011 and those three offences were committed between 11 May and 15 May 2011.

8. Originally, the defendant was sentenced to 46 months and on appeal, the sentence was reduced to 3 years and 4 months (see HKSAR v Chuk Kwok Fung CACC332/2011).  Counsel for the defendant also submitted that the defendant’s drug addiction was partly to blame for his criminal wrongdoing.  The present offence was no more serious than the defendant’s subsequent burglary offences.

Sentence

9. The defendant was born in Mainland China and came to Hong Kong in 1980s.  He is single and lived in Choi Wan Estate, Sau Mau Ping.  The defendant had 20 previous convictions and the latest three related to burglary offences as mentioned. Counsel for the defendant tendered the judgment of CACC332/2011 in Chinese, where the Court of Appeal adopted a starting point of 5 years for the three offences and eventually reduced the sentence to 3 years and 4 months.

10. In the present case, the most important mitigating factor for the defendant is his guilty plea for which he should have known that the sentence will normally be reduced by one-third.  I accept that as far as the burglary offence is concerned and despite his criminal record, the defendant could be regarded as the ‘first offender’.

11. In normal circumstances, the starting point for a non-domestic burglary is 2½ years or 30 months, and I would adopt the same starting point.  With the defendant’s plea, I would reduce the sentence to 20 months.  For the present sentencing purpose, the main consideration however is the totality principle. 

12. Had the present burglary charge been brought together with those burglary offences in DCCC628/2011, the defendant would be entitled to a greater discount because of the totality principle.  After taking all factors into account, I would order that out of the 20 months for the present sentence, 3 months would be served consecutively to the existing sentence of the defendant. 

13. That means on top of the defendant’s existing imprisonment term of 40 months, the defendant has to serve 3 more months for the present offence.