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DCCC239/2011
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO.239 OF 2011
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Before:
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District Judge Douglas T.H. Yau
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Date:
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22 June 2011 at 10:35am
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Present:
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Mr. Wong Kam Chuen, Solicitor on Fiat for HKSAR
Ms. Amanda Lee instructed by M/S Wong Hui & Co, assigned by DLA, for the Defendant
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Offences:
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1) Attempted burglary (企圖入屋犯法罪)
2) Loitering with intent (有意圖而遊蕩)
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Reasons for Sentence
1. The defendant faces one charge of Attempted Burglary and an alternative charge of Loitering with intent. The defendant pleaded guilty to the attempted burglary charge.
Facts
2. The defendant was spotted in a rear lane by Police officers at around 1:35am on 22nd January 2011 standing on a bicycle and trying to climb up the metal railings mounted against the wall of a building. The defendant climbed for a few minutes and then came back down to the rear lane.
3. The defendant then moved forward a few feet and climbed up the air-conditioning units mounted outside the wall of the building for ten odd seconds. Thereafter he returned to the ground and left with his bicycle. Upon reaching the junction of the rear lane and Chatham Road North, the defendant looked around for ten odd seconds before pushing his bicycle forward again.
4. Police officers then intercepted the defendant. Upon search, a 31cm long spanner was found from the right front pocket of the defendant’s trousers. The defendant begged for a chance and said he just wanted to see if there was anything to steal.
5. In a later cautioned interview, the defendant admitted that he went to the rear land of the building and climbed up to see if there were any valuables to steal, that he saw the building was vacant and there was nothing worth stealing and that he intended to use the spanner to dismantle any valuables found and will sell them later.
Previous convictions
6. The defendant has 21 previous convictions. Of those, 1 was for attempted burglary in 1984 and 1 was for burglary in 1993. He does have 6 other previous convictions that are related to dishonesty, the latest one being a conviction for theft in February 2010 when he was sentenced to 1 month and 2 weeks’ imprisonment.
Mitigation
7. The defendant is 56 years old, single and living alone. He was born in mainland China and was educated there up to primary level. The defendant is now working as a decoration worker. He is a self-confessed drug addict.
8. Ms. Lee for the defendant submitted that the building involved was a vacant building awaiting redevelopment. There was no intention to alarm any resident or any people in the building. There are no aggravating factors. It did take place at night but there was no force used as the defendant was merely trying to climb up the building. The defendant was unsuccessful and he just gave up. Although the defendant had a spanner but he did not use it to break into the building so no force was used for the entry.
9. The defendant’s mother is 73, she suffers from late stage brain cancer and is residing in mainland China. Before this offence the defendant would visit his mother every week. The defendant’s mother is not expected to live more than another year.
10. The main mitigating factor in this case is his plea of guilty and admission to the facts, showing genuine remorse.
Sentencing tariff
11. Mr. Wong for the prosecution very fairly accepted that for the purpose of sentencing, the building that the defendant had attempted to enter to steal was at the material time a non-domestic premises.
12. It is well established that the normal starting point for burglary of non-domestic premises is that of 2 and a half years’ imprisonment[1]. Although the defendant pleaded guilty to a charge of attempted burglary, there is no difference in the sentence for an inchoate offence.
Sentence
13. Having heard the defendant’s mitigation, I find that there is nothing that would allow me to depart from the guideline sentence. On the other hand, I also do not see any significant aggravating factors that would cause me to increase the starting point. The defendant has a long criminal record but the last burglary conviction was back in 1993 and the defendant had served his sentence for that crime. He should not be punished for it again.
14. I will therefore adopt a starting point of 2 and a half years’ imprisonment and reduce it by one third in recognition of the defendant’s plea of guilty and sentence the defendant to 20 months’ imprisonment.
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Douglas T.H. Yau
District Judge |
[1] See R v Wong Man [1993] 1 HKC 80 and Secretary for Justice v Tsang Hon-yin [2004] HKCU 1497
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