HKSAR v. FONG CHI KWONG

DCCC1076/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1076 OF 2010

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to a single charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210, Laws of Hong Kong, the particulars being that you on 20 July of last year, having entered as a trespasser to Room 756, Block 13, Pak Tin Estate, Kowloon, you attempted to steal therein.

2.  The Summary of Facts which you have agreed indicate that around midnight on the date in question, you were seen by the victim, the tenant of the premises in question, standing in the centre of his living room.  The victim had temporarily left his premises leaving the door open.  He had left his premises in order to throw away some rubbish.  You yourself live on the 12th floor of the same block of the premises in question.  When you were confronted by the victim, you told him that you had entered the wrong premises and fled immediately.  The victim confirmed to the police that nothing had been stolen from his premises.  It is referred to in the Probation officer’s report who had visited the premises in question that the victim appears to be a scavenger who hoards a lot of waste materials at his home. 

3.  You are 34 years of age and have four previous convictions.  None of them are of a similar nature and I note that your last offence was now over three years ago.  The investigation report speaks of you having had psychiatric problems in the past and indeed have received outpatient treatment care for schizophrenia recently.  It is suggested in the report and on your behalf that you committed this offence due to a combination of absent-mindedness and having consumed alcohol beforehand.  This of course is no excuse but may go some way to explain why you committed the offence.

4.  Burglaries are serious offences and the normal starting point for burglaries of domestic premises is one of 3 years’ imprisonment.  I am asked, however, to consider a Community Service report and I note that you are recommended to be made the subject of such an order.  I myself have thought long and hard about the appropriate sentence in your case. Although the victim lost nothing as a result of this offence, the fact remains that you did enter his premises in the middle of the night and despite what you told the police, you clearly had the intention to steal.  Your counsel in his mitigation told me on your behalf that due to the amount of alcohol that you had drunk you became reckless and a sense of greed arose in your mind. 

5.  I do not consider a Community Service Order to be the proper sentence in your case and I decline to make such an order. However, I also consider the normal starting point for burglaries of domestic premises of 3 years’ imprisonment to be too high taking into account the circumstances of this offence.  The door of the premises was wide open at the time and you simply took the opportunity to go in. 

6.  In the event taking into account all the circumstances of this offence, I adopt a starting point of 18 months’ imprisonment.  I will discount this by one-third to take account of your plea of guilty coming to a sentence of 12 months’ imprisonment.