HKSAR v. CHEUNG YU FAN

 DCCC602/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 602 OF 2009

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Reasons for Sentence

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1.  Defendant, you pleaded guilty to one offence of burglary contrary to section 11(1)(b) and(4) of the Theft Ordinance Cap.210 and to one offence of theft contrary to section 9 of that same ordinance.  You admitted the brief facts and I convicted you.  Briefly the facts were as follows.

2.  At around 9.45 am on 30 April last PW3, who lived at a flat on the 3rd Floor, No. 33 Yen Chow Street, Sham Shui Po, heard noises from the podium.  PW3 saw you climbing up to the podium.  According to PW3 you opened the window of flat A on the 1st floor and reached inside.  PW3 called the police.  PW3 continued to observe and saw you put on a glove and drag an air compressor.  You were holding something in your hand.  PW4, a police sergeant, arrived at the podium.  You immediately threw away a bottle of lotion you were holding in your hand and the air compressor you were dragging. 

3.  A police constable, PW5, arrived and arrested and cautioned you.  You admitted to opening the window of flat A and taking a bottle of cough syrup and a packet of tissues.  You claimed you had just dragged the air compressor when stopped by the police. 

4.  In respect of the first charge PW1 confirmed that the items stolen by you, namely a packet of cosmetic cotton, a bottle of lotion valued at $30 and a bottle of cough syrup valued at $60 belonged to her.  She also confirmed that the window was half open. 

5.  PW2, the landlord of PW1, confirmed that the air compressor valued at $1,300 stolen by you was his property which he had placed at the podium.  That is Charge 2. 

6.  You admitted to 10 previous convictions, three of which involved dishonesty.  I had adjourned this case in order to obtain a probation officer’s background report and a DATC report.  Those reports are now before me.  I understand from Mr Lam that they have been explained to you and that you agree the contents.  I too have read and considered those reports.  I note that you are not considered to be drug dependent and therefore a DATC order is not appropriate. 

7.  On your behalf Mr Lam entered mitigation.  He told me that you were 40 years of age, educated to Form 1 and a mild grade retarded person.  On the day of the offence you intended to collect garbage in the area for sale.  He referred me to photographs of the area which support that claim.  He says that you saw the window and succumbed to greed.  This was an opportunistic burglary with the very least intrusive level of entry.  He said that these offences occurred under the influence of your ex-girlfriend who was demanding money for her drugs.  I am told that affair is now over and she is serving a term of imprisonment herself. 

8.  All goods taken either by theft or burglary have been recovered.  In any event, they were of small value. 

9.  In sentencing you I took into account the nature of the charge, the facts of the cases, the contents of the reports and the mitigation advanced.  Burglary is a serious offence, especially burglary of domestic premises.  I think you should know that the usual starting point for burglary of domestic premises is one of 3 years’ imprisonment.  However, having said that I have to take into account that this was the most technical of offences.  It is certainly a burglary in law.  However, the entry was merely the insertion of your hand through a partially open window.  Goods were removed of very little value.  The burglary was clearly unplanned and opportunistic.  The theft speaks for itself.  I note, as I have already said, that all goods have been recovered so no one has lost by your actions.

10.  However, I do note that this is your fourth conviction for a crime of dishonesty.  I also take into account that you are a person of low grade mental retardation.  I note also the presence of your father and mother in court to offer you support.  That is a positive factor. 

11.  My approach in this case has been to view the overall criminality and sentence you accordingly.  The normal starting point is entirely inappropriate in this case in respect of the burglary charge.  I therefore take a starting point, one of 18 months’ imprisonment.  That will be reduced for your plea of guilty to one of 12 months’ imprisonment. 

12.  In respect of the theft I take as a starting point 9 months’ imprisonment reduced to 6 months for your plea of guilty.  These were almost simultaneous acts and I plan to apply the principle of totality.  Therefore, and also as a act of mercy, these sentences will be served concurrently.  You will go to prison for a period of 12 months.