DCCC259/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 259 OF 2009

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Reasons for Sentence

1.  The defendant pleaded guilty to one charge of burglary.  In sentencing, I take into account the whole circumstances of the case, including its nature and facts, personal background of the defendant, mitigation put forward on his behalf, and have had regard to sentencing precedents.

2.  The facts of the case are simple.  In the morning, on 7 February this year, the occupants of a one-storey stone house in Yuen Long left the premises.  The domestic helper and two children of the family returned at about 1 pm.  In the evening, it was discovered that some cash kept in a tin can was missing.  Later, it was discovered that other properties, including items set out in the charge, were lost.  Some of these properties were then found discarded in the vicinity.

3.  A report was made to the police.  When the police was making inquiries, the defendant appeared and admitted to have entered the premises and stolen properties therein.  He further admitted to having sold a video camera and a digital camera, which he had stolen, and discarded the other stolen properties.

4.  The defendant is 40 years of age.  He received education up to Form 3 level and was a taxi driver by occupation.  He has a son, 11 years old, born of a lady cohabited with him before.  The defendant got married with his wife in the year 2005 but, as a result of this matter, she started proceedings for a divorce.

5.  The defendant is not a first offender.  He was on nine occasions convicted.  The first dated back to 1983 when he was around 15 years old.  Since then, he had been convicted of various kinds of offences, including claiming to be a member of a triad society, publishing obscene articles and possession of dangerous drug and Part I poison.

6.  In mitigation, learned counsel for the defence said that the defendant committed the present offence out of greed and stressed that he was cooperative with the police and was remorseful.  The court was told that the defendant’s employer was willing to employ him after his discharge.  Letters written by the defendant and his employer were produced.

7.  The defendant said that he could not stand the temptation when he found the door of his neighbour not properly closed and there was nobody inside.  Upon inquiry, learned defence counsel told the court it was the defence case, that it was a case of opportunistic burglary.  The prosecution indicated that they were not going to accept this assertion.  In the circumstances, a Newton hearing was conducted.

8.  Upon hearing evidence, I concluded that what the defendant testified, though unlikely, might at least be true, and the prosecution was not able to disprove it beyond reasonable doubt.  I, therefore, consider sentence on the basis that at the time the defendant entered the premises to steal, the door was open. 

9.  The burglary took place in residential premises.  It has consistently been held in sentencing precedents that 3 years was the appropriate starting point in such a case without aggravating factors.

10.  In the case of HKSAR v Cheung To Ming, CACC406/2005, which was a case of burglary in commercial premises, the Court of Appeal cited the case of HKSAR v Sim Ka Wing, CACC450/2000, in which the court said the conventional starting point can be lowered in a case of the opportunistic burglary, akin, perhaps to the sneak thief who walks into an open office to steal whatever he can find.  Further, the court considered a starting point of 18 months appropriate in that case, having regard to what the court described as the most unusual circumstances in which it seemed the appellant had committed that burglary.

11.  I have considered the whole circumstances of the present case, having regard to the case of HKSAR v Cheung To Ming mentioned earlier as well as the case of HKSAR v Yeung Kwok Sang, CACC4/2006.  Though there was no premeditation, this case involved an invasion of domestic premises.  The fear and worry that would reasonably have been caused by a burglary at one’s home cannot be ignored.  The sense of security one can reasonably be expected to enjoy at home is damaged.  Nor can the risk of an unwanted encounter if the occupiers return be ignored.  These features could hardly have existed in the case of Cheung To Ming where the burglary took place in a noodle shop inside a centre after hours when the whole centre had been locked up.

12.  What the defendant has stolen in the present case cannot be said to be minimal. 

13.  In all the circumstances, I am of the view that a starting point of 27 months is appropriate.  The defendant pleaded guilty.  He is entitled to a one-third discount for this factor.  Having regard to mitigation, I am of the view that this is the extent of discount the defendant is entitled to in this case.  I, therefore, sentence the defendant to 18 months’ imprisonment.