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DCCC 527/2009
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 527 OF 2009
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Coram : Her Honour Judge M. Yuen in Court
Date : 5 October 2009
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Present:
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Mr. M.R. Nunns, Counsel on Fiat for HKSAR
Mr. Victor Ho, instructed by Messrs Rowland Chow, Chan & Co. assigned by Director of Legal Aid, for the defendant
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Offence:
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Attempted burglary (企圖入屋犯法罪)
Breach of condition of stay (違反逗留條件)
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Reasons for Sentence
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1. The usual sentence for burglary of non-residential premises is a term of 2 ½ years.
2. For breach of condition of stay I adopt the starting point of 4 ½ months in line with the sentencing approach of the Court of Appeal decision in Tiongson Manalad [2002] 1 HKLRD 681.
3. An attempt is punished along the same approach as the completed offence since the defendant’s acts were interrupted on account of the appearance of the police officers. The fact that the shop owner suffered no loss is a sheer chance of coincidence that the patrolling officers ran into the defendant in the course of his acts.
4. Engaging in criminal activities whilst overstaying or illegal remaining is not a good mitigating factor. For the offence of overstaying or illegal remaining, the usual norm is for the imposition of consecutive terms.
5. In relation to the 2nd charge of breach of condition of stay, the defendant pleaded guilty to the charge at the commencement of the trial, I accord him 1/3 discount and sentence him to 3 months imprisonment instead.
6. For the two charges, I impose a term of 2 ½ years for the charge of attempted burglary and 3 months for the charge of breach of condition of stay (by overstaying). I order both terms to be served consecutively. The total duration is a period of 2 years and 9 months.
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