HKSAR v. CHAN KA CHUNG

DCCC 439 /2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 439 OF 2017

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Reasons for Sentence

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1.  The defendant pleaded guilty to 3 counts of burglary.

Summary of facts

2.  The 3 burglaries in charges 1, 2 and 3 took place on 10^th December 2016, 1^st and 6^th of January 2017 respectively.

Charge 1: Diamond Café

3.  The proprietor of Diamond Café at Shop 4 on the ground floor of Fu Chak House in Shek Kip Mei returned to his café on the morning of 10^th December 2016 to find the padlock affixed to the glass door of the front entrance lying broken on the ground outside the ransacked café. Cash of about $6,500 inside the cashier and a cupboard had gone missing. The overall cost of repair was $2,000.

4.  CCTV captured the defendant, together with another unknown male, burgling the café at around 3am earlier. The unknown male was seen prizing open the padlock and entering the café. The defendant entered shortly afterwards. They stole and then left via the same route.

5.  The defendant’s fingerprints were found on the glass door of the front entrance. The defendant admitted in a subsequent video recorded interview that he had burgled the café with another person, and that he had received a $1,000 reward for his part.

Charge 2: 759 Store

6.  22 days later on 1^st January 2017, the proprietor of 759 Store at Shops 1 & 2 on the ground floor of number 18 Farm Road, Kowloon City returned to his store at around 9am to find the iron chain securing the side entrance of his store cut and the store ransacked.

7.  2 cash register drawers with $2,904.40 cash; 3 bottles of wine (total value of $5,064); and 2 donation boxes containing about $1,000 cash were stolen.

8.  CCTV captured the defendant and an unknown male burgling the store in the early hours. The cost of repair to the store came to approximately $200.

9.  In the subsequent video recorded interview, the defendant admitted that he was the person seen in the CCTV footage burgling the store. Similar to the burglary in charge 1, the defendant received $600 as a reward for his part.

Charge 3: Little Onion

10.  5 days after the 759 Store burglary, at around 2:26am, WDPC 9130 witnessed the defendant pushing open the sliding glass door of Little Onion fast food shop and entering the premises.

11.  Little Onion is situated at shop 217 on the ground floor of number 2 Wai Chi Lane in Shek Kip Mei. The proprietor of Little Onion confirmed that a padlock was affixed to the glass door at the front entrance of the shop and that everything was intact and in order when he left the shop the night before.

12.  When the defendant emerged from Little Onion about 21 minutes later, he was holding a bulky white plastic bag and carrying a black shoulder bag.

13.  Two Police officers gave chase and apprehended the defendant.

14.  Upon search, the items particularized as stolen under charge 3 were found either inside the white plastic bag or the shoulder bag that the defendant was carrying. The defendant was holding a pair of gloves in his hands and 2 chisels and 2 screwdrivers were also found inside the shoulder bag.

15.  The door lock of Little Onion was later found to have been prized open and damaged, with cost of repair at around $1,400.

16.  The defendant was arrested. He claimed under caution that he burgled Little Onion because he did not have money for food. In the subsequent video recorded interview, the defendant also claimed that he was asked by a man to burgle Little Onion.

17.  The overall value of the things stolen is approximately $17,506.

Previous convictions

18.  The defendant has one spent conviction for handling stolen goods when he was sentenced to 15 months’ probation. The conviction was more than 7 years ago in 2010.

Mitigation

19.  The defendant is 30. He lives together with his girlfriend. They have a baby girl who was born in April 2016.

20.  It is Mr Wong’s submissions that the defendant committed the present offences out of desperation. He was working as a cook earning $11,000 per month when their baby arrived. The money was just not enough to support the family. The defendant asked around and was told he could assist in the burglaries for a reward. His desire to provide for his family overcame his judgment and he agreed.

21.  Mr Wong, very fairly, accepted that the fact that the burglaries in charge 1 and 2 were committed together with another would be an aggravating feature.

Sentencing guidelines

22.  It is trite law that the starting point for burglary of a non-domestic premises for a first offender of full age before considering any aggravating or mitigating features is that of 30 months’ imprisonment[1].

Aggravating factors

23.  In relation to charges 1 and 2, the defendant committed the offence with another person. This is an aggravating factor.

24.  In relation to charges 2 and 3, they were committed shortly after the commission of the burglary in charge 1. In the case of charge 3, it was committed just a few days after charge 2’s commission.

25.  I find that the said aggravating factors require the sentences in each of the 3 charges to be enhanced by 3 months. The enhanced sentence is 33 month’s imprisonment for each charge.

26.  I do not consider the defendant’s conviction record an aggravating factor.

Mitigating factor

27.  It is trite law that personal circumstances would not entitle a defendant to a discount in sentence.

28.  The defendant’s baby girl had already been born when he committed the offences. The defendant had had previous experience with the justice system and would have known the consequences of his action should he be caught. He chose, nevertheless, to accept the invitations to burgle.

29.  In the present case, there is nothing to suggest the defendant’s personal circumstances are so unusual as to merit a discount.

30.  The only mitigating factor is the defendant’s timely guilty pleas.

Sentence

31.  The sentences for each of the 3 charges after discounting for the defendant’s pleas of guilty is that of 22 months’ imprisonment.

Totality

32.  The 3 offences were committed over a period of 27 days. They took place on 3 different days, at 3 different premises and involved 3 different victims. There are no connections between the burglaries save for the defendant’s participation. They cannot be said to have arisen out of one single transaction.

33.  Taking a step back, I find that 3 months of each of the sentence in charge 2 and 3 should be served consecutively to the sentence in charge 1, while the balance should be served concurrently.

34.  The final sentence is, therefore, 28 months’ imprisonment for the 3 charges.