HKSAR v. KWOK CHUN FUNG

DCCC212/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 212 OF 2010

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Reasons for Sentence

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1.  The Defendant pleaded guilty to one count of burglary and was convicted accordingly.

2.  It was the Prosecution’s case that the offence occurred in a construction site located near Fairview Park Boulevard on 2 February 2010.

3.  At about 7.00 pm on 1 February, PW2, a civilian living near the above-mentioned construction site, was alarmed by some strange noises and the sight of a person moving around.  At about 2.15 am on the following day, PW2 and her husband saw a flashing light inside one village house in the construction site.  A report was made.  At about 3.06 am, the police arrived at the scene.  The Defendant was found on the ground floor of a building, but he managed to abscond.  The police eventually located the Defendant near a water tank on the rooftop of a village house.  Upon a body search on the Defendant, the police found two screwdrivers. 

4.  Under caution, the Defendant admitted that he dismantled the electrical wire and copper rods and intended to sell them.  The Defendant took the police to locate the stolen property, which was identified by the person in charge of the construction site as the scrap materials from the construction site.  It was said the stolen property worth about $300.

Mitigation

5.  The Defendant is now 37 years old, single, and is living with his grandmother in a container.  The Defendant is not a drug addict.  His grandmother and his relatives are now in court to show their support.

6.  This case involved a crime of no sophistication and the Defendant acted alone.  It was submitted that the site in question can be described as a demolition site and the present offence can be labelled as the lower category of burglary of non-domestic premises.  The stolen property is of minimal value, worth about $300.  It was submitted that the Defendant posed no risks to the community, and this was an opportunistic crime.

7.  The Defendant’s previous record shows that he had committed an offence theft back in November 2007 which was indicative of some sort of non-major theft.

8.  The case of HKSAR v Yeung Kwok-sang, CACC4/2006, was referred to wherein a sentence of 18 months was upheld for the offence of opportunistic burglary.

9.  The most important mitigating factor is the Defendant’s guilty plea.  He was cooperative with the police throughout.  The stolen property was recovered.  It was submitted that what the Defendant did was a kind of scavenging activity.

Sentence

10.  The Defendant had a total of 11 previous convictions, out of which 7 related to theft.  His latest conviction related to the possession of drugs in November 2008, for which he was fined $1,500.

11.  I accept that the commission of the present offence involved no degree of sophistication and the value of the stolen property can be regarded as minimal.  The Defendant perpetrated the crime alone.  It happened in the early hours of the day.  I also accept that this was an opportunistic burglary even though the Defendant was found in possession of two screwdrivers at the time when he was arrested.  The site was a non-domestic premises and it is well established that the starting point for non-domestic burglary would be one of 2½ years.  However, taking into account the circumstances of the present case, the low degree of sophistication and the value of the stolen property, I would treat the Defendant with leniency.  I adopt a starting point of 2 years.  The Defendant’s plea would allow him to have one-third discount.

12.  Accordingly, I sentence the Defendant to 16 months’ imprisonment.  The Defendant is still young and should make good use of the chance to reflect on the way to rehabilitate himself and to treasure the support shown by his grandmother and relatives.