HKSAR v. KWAN FUN HUNG

DCCC 664/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 664 OF 2012

--------------------------

--------------------------

-------------------------------

REASONS FOR SENTENCE

-------------------------------

1.  Defendant has pleaded guilty before me to a single charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Chapter 210.

2.  The particulars of offence avers that the defendant:

“...on the 29th day of June this year, in Hong Kong, together with a person unknown, having entered as a trespasser part of a building known as 3^rd Floor, King’s College, No 63A Bonham Road, Pok Fu Lam, attempted to steal therein.”

3.  The facts of this case are straightforward.  The premises in question were the teaching complex of the King’s College consisting of four storeys.  On the day in question, at around 4:50 pm, the burglary alarm on the rooftop of the school was activated, and then a staff member of the school later spotted two male persons, including the defendant, on the 3^rd floor of the teaching complex.  Obviously, the defendant or the unknown male person were neither student nor staff of the school.

4.  Upon seeing the school staff, the defendant and the other unknown male person fled but they were soon intercepted at the main entrance of the school. In the end, the unknown male person made good his escape.

5.  After a report was made to the police, a team of police officers attended the scene and conducted investigation.  Upon viewing the CCTV recording of the school, it was found that the defendant and the unknown male person had tampered with one classroom door and opened a student locker on the 3^rd floor of the teaching complex.  Later, as confirmed by the student using the locker, the locker was unsecured at the material time but nothing has gone missing.

6.  A body search was conducted on the defendant and inside the bag which he was carrying, it was found, among other things, one face mask, one torch and one nail-file.

7.  Upon initial questioning at the scene, the defendant first admitted having entered the school without prior approval and that he had done so with a friend called Ah Wai.  In the first video-recorded interview, the defendant denied stealing in the school.  In gist, what he was trying to say was that he only went into the school for the purpose of using the lavatory and he together with Ah Wai were just wandering around the school for the purpose of sightseeing.

8.  In a subsequent record of interview, however, the defendant finally admitted that having entered the school, Ah Wai told him that he was in need of money, and the two of them were wandering around the premises in search for items for stealing.  He admitted also opening the lockers and classroom doors on the 3^rd floor of the teaching complex.

9.  The defendant is now aged 38 years old.  He only has a Primary 6 level of education.  In the past, he had altogether 22 items of criminal records. His last conviction was in July 2011 for “publishing an obscene article” and also “possession of an obscene article for the purpose of publication” for which he was sentenced to a total of 8 months in the Eastern Magistracy.  Of all his criminal records which dated since 1987, he had altogether four similar burglary records starting from 2001 and his last burglary record was in 2006 involving a total of four different cases in the District Court.  On each case, he was sentenced to a period of 2 years.

10.  In mitigation, Mr Yuen, solicitor for the defendant, had informed the court that prior to his last conviction in the Eastern Magistracy, the defendant was working as a casual transportation worker earning about $8,000 per month.  However, after his discharge from the prison in January 2012, he was unable to find a job and therefore was unemployed up to the time when he was arrested for this offence.

11.  As to the reason why the defendant committed the present offence, Mr Yuen gave a detailed account of the fact that while the defendant was serving his last prison sentence, one of his elder brothers unfortunately passed away, and the deceased ashes were temporarily placed in a government columbarium awaiting a resting place in a permanent columbarium to be allocated.  I was told that because the defendant wanted to contribute to the costs of purchasing a resting place for his elder brother, he turned to the present misdeed in order to fund the purchase.

12.  Mr Yuen has also properly acknowledged that the conventional starting point for a non-domestic burglary offence is two and a half years.  He said that the defendant fully recognised that the present offence is serious and he has to pay the penalty for his wrongdoing.  Mr Yuen, however, submitted to the court that there are still mitigating factors in this case, such as that no loss was suffered by anyone, including the school and that although he is a repeated offender who had four previous similar convictions, there is no other aggravating factor, such as no injury was caused or threat made to any person and no violence of any kind was used and no damage was done to the fixtures of school or any property of the school. 

13.  All in all, Mr Yuen urged the court to take that into account and submitted that the defendant committed the present offence of burglary only by chance and not by a premeditated plan.  He said that although a nail-file was seized from the defendant, there was no evidence that it was used as a tool for committing the burglary.  Mr Yuen went so far as to suggest that the defendant may be treated by the court as an opportunistic burglar, and therefore I may consider adopting a starting point of not more than two and a half years. 

14.  While I acknowledge some of the factors which have been emphasised by Mr Yuen in his mitigation, I do not accept that those are indeed mitigating factors in this case.  I do not agree that this is a burglary which is not committed by the defendant as a result of careful planning or a premeditated plan.  Clearly, the school is a private premises to be attended by staff and students only and the fact that it was opened or maybe easily accessible by members of the public does not turn the place into a public place.  Apart from the nail‑file which has been mentioned by Mr Yuen in his mitigation, I cannot ignore the fact that the defendant was also found with him a torch and a face mask.  Those are clearly tools for committing burglary.

15.  In the case of HKSAR v Cheng Wai Kai (unreported) CACC338/2007, the Court of Appeal had said that the starting point of a burglary could be adjusted upwards for aggravating circumstances, and one or more of those circumstances include that the offence was committed by two or more persons; the offender was a professional burglar and not just an opportunist and the defendant had previous convictions, particularly similar in nature. 

16.  Looking at those aggravating circumstances, firstly, this offence was carefully planned, secondly, the offence was committed by two persons and finally, the offender was a professional burglar with previous conviction. Because of the presence of all these aggravating factors, I took the view that the usual starting point of non‑domestic burglary, which is two and a half years, should in fact be increased by 9 months. 

17.  I would therefore adopt 39 months as the starting point.  Mr Yuen during the course of mitigation had referred me to a letter of mitigation written by the defendant personally.  I do not intend to refer to the full content of his letter.  Suffice it to say that this is to me, only a last-ditch attempt by the defendant to persuade the court to give him a last opportunity, emphasising that he now realised that he was wrong and he regretted that his aged old mother has to be worried about him for this misdeed. 

18.  While I have every sympathy for the mother of the defendant, I do not regard what he had said in his letter has anything to do with his mitigation. The only mitigating factor which is effective is his plea of guilty which entitles him the one-third customary discount.  The sentence will be reduced therefore by 13 months.  The defendant is therefore sentenced to 26 months’ imprisonment.