HKSAR v. CHUI CHI WAI

 DCCC354/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 354 OF 2010

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Reasons for Sentence

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1.  This morning the defendant pleaded guilty before me to the following charges: 1st charge, burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210; 2nd charge, theft, contrary to section 9 of the Theft Ordinance, Cap.210; and 3rd charge, assault occasioning actual bodily harm, contrary to common law and punishable under section 39 of the Offences Against the Person Ordinance, Cap.212.

2.  The defendant admitted the summary of facts relating to these charges, which are as follows: On 26 February 2010 while PW1 and her boyfriend, PW2, were dining in a restaurant in Tai Po, she was alerted by others that her handbag, which was placed on a seat next to her, had been taken away. PW1 and PW2 therefore went out of the restaurant immediately and PW2 saw the defendant running away with the handbag. Inside the handbag there were, among other things: cash of HK$2,700, one ring, PW1’s Hong Kong identity card, and some bank cards. This is the subject matter of the theft charge - the 2nd charge.

3.  On seeing the defendant running away, PW2 gave chase and the defendant then discarded the handbag on the way. PW2 picked it up but continued chasing after the defendant. Shortly afterwards, PW2 got hold of the defendant. The defendant, however, struggled, and in order to loosen PW2’s grip, he bent PW2’s left index finger and bit PW2’s left forearm. Subsequent medical examination revealed that PW2 had sustained tenderness on his left index finger and abrasion on his left forearm. This is the subject matter of the charge of assault occasioning actual bodily harm - the 3rd charge.

4.  Later the police arrived and arrested the defendant. Under caution, the defendant admitted that he had stolen PW1’s handbag as he had no money for food.

5.  Subsequent police investigation further revealed that the defendant was connected with the burglary charge - the 1st charge - and under caution, the defendant admitted that on 22 February 2010 while he was walking past a garage in Tung Sau Square, Tai Po, he noticed that the roller gate of the garage had only been lowered halfway. He therefore entered the garage and stole from there two Octopus cards and one digital camera. These items were placed on the reception desk near the entrance of the garage. The defendant said he later sold the stolen items and spent the money on food.

6.  PW4 was a staff of the garage. She confirmed that at the material time she was making preparations to close the garage and she had the roller gate of the garage lowered halfway to about one metre above the ground. She then went up to the mezzanine floor to attend to other matters. The following morning when PW4 returned to the garage, she found that the two Octopus cards, valued at HK$400 in total, and one digital camera, valued at HK$2,000, were missing from the reception desk. CCTV of the garage captured the defendant entering and leaving the garage the previous night when the roller gate was half-lowered.

7.  In mitigation, it was said on behalf of the defendant that he is remorseful and he made full and frank admissions to the police, and has pleaded guilty. Further, the injuries sustained by PW2 were minor ones. He therefore begs for a lenient sentence.

8.  The defendant is now aged 29 but in 1996 he started transgressing the law. He now already has a number of convictions, including nine “theft” and “attempted theft”, one “burglary”, one “attempted burglary”, two “common assault” and some drug-related offences. He was last released from prison on 22 January 2010. However, within just about a month, he committed the burglary offence in this case. It was said that he did so because after his release from prison he was unable to find work, and as he owed some money to a finance company, he was hard-pressed for the repayments. He did go to seek help from the Social Welfare Department but, out of greed, he committed the offences to which he has now pleaded guilty.

9.  In sentencing, I have taken into account the facts relating to these charges, the background of the defendant and the mitigation put forth. I have also considered the sentencing guidelines set out in the Attorney-General v Lui Kam-chi [1993] 1 HKC 215, where it was considered that for burglary of non-domestic premises - like the garage in this case - the correct starting point is one of 2½ years for a first offender of full age.

10.  In the case before me, there are no mitigating factors other than the defendant’s pleas. The sentences I am going to pass are as follows:

11.  For the burglary charge, the 1st charge, a starting point of 30 months; one-third reduction for his plea. He is to serve a term of 20 months.

12.  For the theft charge, the 2nd charge, I’ll adopt a starting point of 9 months. Again, one-third reduction for his plea; he is to serve a term of 6 months.

13.  For the assault occasioning actual bodily harm charge, the 3rd charge, no doubt this offence was committed with the only purpose of facilitating the defendant’s escape from his pursuer at the time - that is PW2 - after the defendant had committed the theft of PW1’s handbag. In these circumstances, I consider that a starting point of 3 months to be appropriate. Again, the defendant will be given a one-third reduction for his plea, and he is to serve a term of 2 months for this charge.

14.  Although the commission of the offences in Charges 2 and 3 were closer in time, the three charges in respect of which the defendant was convicted did not arise out of the same set of facts. The sentences should be served consecutively.

15.  However, having considered the totality principle, I will order that while the term of 20 months for Charge 1 and the term of 6 months for Charge 2 are to be served wholly consecutively, only 1 month of the 2-month term for the 3rd charge is to be served consecutively to the terms imposed in respect of Charges 1 and 2, making a total of 27 months’ imprisonment.