HKSAR v. MA WAI KWONG

 DCCC864/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 864 OF 2009

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Reasons for Sentence

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1.  The defendant pleaded guilty to a charge of "Burglary", contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210.

Summary of Facts

2.  The Mongkok branch of Ocean Empire Food Shop ("the Shop") was situated at Ground and Mezzanine Floors, 22 Mongkok Road, Kowloon. The Mezzanine Floor was used by the Shop as a staff and storage area, whereas the Ground Floor, for carrying out its business.

3.  Madam KWAN (PW5), a staff member of the Shop, was on duty on 21 June 2009. She went off duty at about 2:30 am on 22 June 2009. Before leaving the Shop, PW5 checked the safe which was placed inside the Manager's Room located on the Mezzanine Floor. She confirmed that there were $5,000 cash inside the safe and that a pink box containing some $10 notes and coins was also placed inside the Manager's Room. As she left, PW5 secured the Manager's Room as well as the entrances of both the Ground and Mezzanine Floors.

4.  At about 4:35 am on 22 June 2009, PC 8991 (PW1) and his colleagues were patrolling at the rear lane of the building in which the Shop was situated. PW1 noticed that the entrance of the Ground Floor was left ajar. He and his colleagues thus entered the Ground Floor, and upon entry, found the defendant inside. The defendant was carrying a backpack and behaving furtively.

5.  PW1 searched the defendant and found the following items in his backpack : 1 electric drill; 2 batteries; 1 pair of labour gloves; 8 drill bits; 1 hammer; 2 spanners; 1 saw; 3 saw blades; 1 clipper; 5 screwdrivers; 1 plane; and 1 clamp. PW1 asked the defendant the purposes of such items, the defendant said he got busted and there was nothing he could do. He told PW1 that it was upstairs.

6.  PW1 and his colleagues took the defendant to the Mezzanine Floor for investigation. The police officers noticed that the main gate at the Mezzanine Floor entrance was left open and that there were drill holes on the lock of that gate. PW1 asked the defendant what had happened, the defendant said he used an electric drill to break open the gate.

7.  At about 6:15 pm on the same day, Madam MAK (PW4), another staff member of the Shop, returned to the scene. After checking, PW4 discovered that the locks of the main door and the main gate at the Mezzanine Floor entrance were drilled. The safe inside the Manager's Room was prized but the $5,000 cash inside remained intact. The pink box which was originally placed on top of the safe was left on the floor, and $40 odd cash inside were found missing.

8.  In his video interviews, the defendant admitted, under caution, that he entered the Manager's Room located on the Mezzanine Floor and stole $40 odd cash from the pink box. He tried to use a plane to prize open the safe but did not succeed.

Mitigation & Sentence

9.  The defendant is now 48. He has 7 previous conviction records, all of which except one are related to "Theft", "Robbery" and "Burglary". His last 2 convictions involve a total of 5 charges of "Burglary". The defendant is married with a 2-year-old son. His wife and son both reside in the mainland.

10.  In the course of mitigation, defence counsel Mr. TSOI submitted that the defendant committed the present offence because he was desperate for money to support his family. The defendant was unemployed at the material time. Mr. TSOI also stressed that the defendant acted alone in the present case and had only stolen $40 odd. Furthermore, the defendant's last conviction was back in 1990. He has been trouble free for about 17 years.

11.  The normal starting point for non-domestic burglary is 2.5 years imprisonment. Although the defendant's last conviction is dated 1990, his previous records render him a "repeated offender", which is an aggravating factor in terms of sentencing. Also, I note that the defendant went to the Shop fully equipped with the most common tools for breaking-in. On the other hand, I accept that the defendant acted alone in this case and had only stolen a small sum of cash.

12.  In my view, despite the fact that he has stayed "clean" since his last conviction, the defendant is a "repeated offender". Hence, the sentence in the present case must carry a deterring element. In other words, a higher than normal starting point is required. I adopt a starting point of 33 months imprisonment. One-third discount is given for his guilty plea, reducing the sentence to 22 months. Apart from this, I see no other mitigating factors which warrant any further reduction. The sentence I pass is therefore 22 months imprisonment.