HKSAR v. TAM CHUN LEUNG

DCCC 964/2017
[2018] HKDC 229

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 964 OF 2017

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REASONS FOR SENTENCE

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1.  Defendant Tam Chun Leung stands convicted on his own plea of one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

Admitted Facts

2.  The facts admitted by Mr Tam may be summarized as follows.

3.  At all material times, a rooftop unit previously occupied by PW2 as a residence had been left vacant and used as a storage facility for PW2’s belongings.

4.  On 22 August 2017, PW2’s daughter secured all its doors and windows before leaving the unit.

5.  At about 9:30 pm on 30 August 2017, upon being tipped off 40 minutes earlier by a neighbour of the rooftop unit that something untoward was happening with the unit, the daughter reached the Ground Floor of the subject building and made a report to the police.  When the police arrived, she went with them to the rooftop unit and discovered:-

(a) Mr Tam was under a blanket in the bedroom of the unit;

(b) One of the windows in the unit was opened and the glass of this window was broken; and

(c) There were signs of ransacking in the unit.

6.  The items subject of the charge were found in Mr Tam’s waistbag.  These items were later identified by PW2 to be hers to the total value of $1,500 and were originally stored in the bedroom of the unit.

7.  Under caution, Mr Tam admitted that he had been in the rooftop unit for two days already.

Criminal record

8.  Mr Tam’s criminal record which is agreed shows that he has 10 previous convictions involving a total of 14 offences including one relating to breach of suspended sentence.  Six of those previous offences are minor theft or attempted theft.

Antecedents

9.  The antecedents statement which is agreed shows that Mr Tam is aged 43 (42 at time of offence) and was educated to secondary 3 in the Mainland.  He was unemployed at the time of the offence.  He was last discharged from prison on 29 April 2017 for a myriad of offences.  Mr Tam is divorced and his family members include mother, brother (both in Mainland) and two daughters aged 6 and 10 (both under the care of ex-wife).

Mitigation

10.  Mr Jacky Lai of counsel assigned by the Director of Legal Aid mitigated on Mr Tam’s behalf.

11.  The following is a summary of the mitigation submissions.

12.  Mr Tam came to Hong Kong from Hoi Ping in the Mainland in 1995 when he was 20 years old.  He had been a registered electrician earning $12,000 per month.  Due to his mental problem which occurred since 2013, he has to rely on CSSA which is a little over $4,000.  His wife divorced him in 2017 as a result of which he lost custody and care of his two daughters to her.  Further, he gave his ex-wife and two daughters his life savings of $60,000 hoping that they would lead a better life.  He also lost his right to continue to live in the public housing unit in Oi Man Estate since July 2017 which turned him into a homeless person.

13.  Mr Tam admitted his wrongdoing in the first instance and pleaded guilty showing his remorse.  He pledges never to re-offend.

14.  Mr Lai submitted 3 documents, namely two letters and one medical report the latter being dated 19 January 2018.

15.  The first letter is from HK Christian Kun Sun Association which averred that Mr Tam’s main problem was his rooted drug problem and that the association will provide aftercare service to ex-prisoners including Mr Tam in due course to help him re-integrate into society.

16.  Mr Lai assured me that Mr Tam has got rid of his previous drug habit.

17.  The second letter (in Chinese) is from the HK Housing Authority which confirms that because of the divorce, Mr Tam had to move out of the unit.

18.  The medical report under the hand of resident psychiatrist of Kowloon Hospital spoke to the fact that Mr Tam has a history of drug-induced psychosis since 2014 but his condition seems to have stabilized recently.

Sentence

19.  I have considered Mr Jacky Lai’s mitigation submissions.

20.  I have seen the photographs in the Prosecution’s photo album.

21.  I do not see the need to consider Hospital Order as a sentencing option given Mr Tam’s continual recovery from previous drug-induced mental problems.

22.  I will not take into account Mr Tam’s previous convictions in minor theft in assessing his sentence on the present occasion.

23.  I will treat the subject unit as non-domestic premises despite Prosecution’s demurrer on the issue.  The reason is that the unit was clearly meant to be used as a storage area only at the time of the offence.

24.  The strongest mitigation is Mr Tam’s early indication of plea which he has materialized.

25.  The conventional sentence for burglary of non-domestic premises without aggravating or mitigating features is two and a half years’ imprisonment (see Attorney General v Lui Kam Chi [1993] 1 HKC 215, and HKSAR v Sim Ka Wing, CACC 450/2000).

26.  I will adopt this as the starting point and I will give full credit to Mr Tam for his early plea of guilty.

27.  There are no other mitigating factors of sufficient weight to warrant a further discount.

28.  Mr Tam please stand.

29.  Mr Tam will go to prison for 20 months.