HKSAR v. CHUK WAI LEUNG

DCCC 779/2020

[2021] HKDC 496

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 779 OF 2020

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REASONS FOR SENTENCE

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The defendant faces 4 charges of "Burglary". He pleaded guilty to Charges 3 and 4. I granted the prosecution's application to leave Charges 1 and 2 in the court file; not to be proceeded against the defendant without leave of court.

Summary of Facts

Charge 3

2.  Mr. and Mrs. Tam (PWs 10 and 9 respectively) and their son resided at a unit on the 10^th Floor, Nan Yuen Building, No.54 Tai Nan Street, Sham Shui Po ("the Flat").  PW9 was the last person to leave the Flat at   8:45 a.m. on 29 May 2020.  When PW10 returned home at 7:30 p.m. on the same day, he found a railing of the Flat's metal gate twisted and the wooden door having been prized.  The Flat was ransacked.  The costs of repairing the wooden door and the metal gate were $8,000.

3.  When PW9 came home, she found numerous items missing from different locations in the Flat.  Dozens of red packets containing cash (valued at about $1,000 in total) and a laptop computer (valued at $7,080) were stolen from the living room. Cash in the sum of $3,000, a mobile phone (valued at $500), PW9's expired passport and a pair of platinum wedding rings (valued at $20,000 in total) were stolen from the master bedroom.  A mobile phone (valued at $500), a backpack (The North Face brand; valued at $700) which contained a stack of red packets containing cash (valued at about $1,000 in total) were stolen from their son's room.

4.  CCTV footage captured the defendant entering Nan Yuen Building around 2:05 p.m. on 29 May 2020.  He took the elevator to go upstairs.  About 35 minutes later, he took the elevator down and left the building.  He was carrying a black backpack when he left.  PW9 recognized the backpack being the one stolen from her son's room.

Charge 4

5.  About 5:50 p.m. on 3 June 2020, a police officer saw the defendant wandering outside the entrance of Sun Mong House, Nos.50-56 Mong Kok Road, Mongkok.  Later, when someone came out of Sun Mong House, the defendant quickly entered the building.

6.  Police officers searched the building and found the defendant at the staircase between the 9^th and 10^th Floors.  He was carrying a slant bag which contained a 27cm long screwdriver, a 33cm long screwdriver with a bent metal shank, a 33cm long crowbar wrapped in a towel, an Octopus card and a paper bag with an "ICE FIRE" logo.

7.  Under caution at the scene, the defendant said "These tools are mine, which I intend to use for committing burglary on these units in the building; to see if there is anything of value to steal."  Upon arrest, the defendant said under caution that he had not yet committed any burglary and asked for a chance.

8.  CCTV footage captured the defendant entering Sun Mong House and taking the elevator to the 8^th Floor.

9.  In his video recorded interview in respect of Charge 4, the defendant admitted, inter alia, that he intended to go upstairs at Sun Mong House to steal but had not found a target yet.  He has never lived in that building and did not know anyone residing there.  The screwdrivers and crowbar were for prizing open doors.

Mitigation & Sentence

10. The defendant is 50. He has 8 conviction records, which included 7 "Going equipped for stealing" offences and 4 "Burglary" offences. He has a 3-year-old daughter with his girlfriend, but they do not reside with the defendant. Defence counsel Mr. Hung informed me that the defendant resides with his mother (aged 86) and takes care of her daily needs. The defendant was a construction worker earning about $20,000 per month. He paid monthly contributions to his mother and girlfriend.

11. In mitigation, Mr. Hung submitted that the defendant's previous "Burglary" convictions took place over 20 years ago. He has managed to stay trouble free afterwards, except for 2 "simple possession" convictions in 2005 and 2020. Furthermore, no property loss or damage was involved in Charge 4.

12. The normal starting point for domestic burglary is 3 years' imprisonment. I would not increase the starting point because of the defendant's previous similar convictions; however, committing 2 burglaries within 6 days is an aggravating factor[1]. In Charge 4, the defendant was well equipped with tools for "breaking in". It was fortunate that he was arrested before he could break into any flats in that building.

13. I will adopt a starting point of 39 months' imprisonment for each charge. With the timely guilty pleas, the sentence is reduced to 26 months each. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 26 months' imprisonment each for Charges 3 and 4.

14. Bearing in mind the totality principle, I consider a global starting point of 48 months just and appropriate for both charges. With the timely guilty pleas, the overall sentence is reduced to 32 months. Hence, I order 6 months in Charge 4 to run consecutive to the sentence of Charge 3.