HKSAR v. CHAN KAM MING

DCCC1336/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1336 OF 2009

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Reasons for Sentence

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1.  The defendant pleaded guilty to four charges of burglaries.  All charges involved the same domestic building.

Prosecution Case

2.  In the evening of 7 October 2009, two policemen were conducting anti-burglary operation.  At about 6.30 pm, they saw the defendant was acting furtively at the podium of Man Yuen Building.  After a short while, the defendant walked out from the building hurriedly. 

3.  The defendant was intercepted.  Upon a search, a screwdriver and two spanners were found inside the defendant’s shoulder bag.  The defendant admitted that he intended to prise open the window of a flat on the 2nd floor at Man Yuen Building and intended to burgle therein.  He gave up as he noticed that he was kept under observation. 

4.  He also admitted that in June, July, August 2009, he had burgled three other premises in the same building by prising open the windows of the flats to gain entry to steal.

The Record

5.  The defendant had 33 previous convictions:- 

(i)  23 of these were burglaries;

(ii)  4 were theft;

(iii)  1 attempted burglary;

(iv)  2 were robberies;

(v)  others were possession of dangerous drugs, going equipped for stealing, taking conveyance without authority.

Mitigation

6.  Defendant is 52, wife is 43, lives in China, parents in their 80s.  Defendant was discharged from prison in 2002 after serving a sentence of 4 years’ imprisonment for a single count of burglary.  Since 2002 to 2006, he worked as a kitchen assistant for $6,500 per month.  Due to his back pain, he had to quit the job because the nature of the jobs required long hours of standing.  Since then he relied on public assistance of 2,330 for living.  That sum alone was not enough for his own living in Hong Kong.  He faced great financial pressure.  He committed the present offence because of his financial problem.

7.  Mr Wong for the defendant also pointed out that these four offences did not involve violence and no one was hurt or frightened.  In addition, the defendant volunteered to make admission as to the three other offences, that is, charge 1 to 3.

8.  The defendant in his own letter indicated remorse and said that he would not commit any further offences, and he also asked concurrent sentence on the four charges.

Sentence

9.  To start with, no one would dispute the defendant’s criminal record is appalling.  He has 33 previous convictions, out of which 23 were burglaries, 1 attempted burglary.  There is no doubt that he is a persistent offender insofar as burglaries are concerned. 

10.  In his own admission to the police, he said that he prised open the windows of the flats in order to gain entry to steal.  He used the same modus operandi on each occasion to burgle.  Clearly, he is a professional burglar.

11.   These four flats in the four charges are in fact located in the same building.  The defendant having gained entry into the first one must become familiar with the same layout and the environment of the building especially there was a podium in the building for the defendant to walk about for him to target at any potential place to burgle.

12.   And further, he committed the first offence in June 2009.  That was two and a half months after he was released from prison after serving a sentence since February 2009.  All the previous sentences failed to serve a deterrent effect on the defendant. 

13.  For the first-time offender in a domestic burglary case, 3 years is the usual starting point.  However, in the present case, I am of the view that a heavier sentence is needed as prevention of further repetition was necessary in the public interest.

14.  Having considered two authorities: CACC412/2000 HKSAR v Leung Tong & Others, CACC479/2000 HKSAR v Wan Ho Kit, in these two cases, the court said that for a repeated offender in burglary case, 4 years’ starting point is appropriate.

15.  I adopt 4 years as starting point for all four charges.  I reduce it to 32 months to reflect his guilty plea.  As to Charge 2, 3 and 4, each charge 10 months to be run consecutively to Charge 1.  It becomes 62 months.  I further reduce 2 months for the defendant’s voluntary admission to the police to commit Charge 1 to 3.  It becomes 60 months and that is 5 years for the sentence.