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DCCC 1125/2015
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1125 OF 2015
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| Before : |
H.H. Judge G. Lam |
| Present : |
Mr. Ivan SHIU, PP, of the Department of Justice,for HKSAR.
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Ms. LEE Kit Ying of M/s Lau Chan & Ko,
assigned by the Director of Legal Aid, for the
defendant.
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REASONS FOR SENTENCE
The defendant pleaded guilty to a charge of "Burglary". He burgled a hair salon situated at the 2nd Floor of a building and stole cash in the sum of about $20,000.
Summary of Facts
2. Mr. NG (PW1) was the proprietor of a hair salon situated at the 2nd Floor of a building in Tsim Sha Tsui ("the Shop"). Its address is particularized in the Charge.
3. About 10:30 a.m. on 31 August 2015, PW1 discovered that 2 drawers at the cashier counter of the Shop having been prized open. Cash in the sum of about $4,000 was missing from one of the drawers. The safe in the backroom was also prized open. Cash in the sum of $16,000 was missing from the safe. The ventilation window of the washing machine room was damaged and the window grille was cut. PW1 alerted the Police.
4. CCTV footage of the Shop showed that after entering the Shop, the culprit put on a salon robe and a hat inside the staff room. He then approached the cashier area and went through the contents of the drawers. Upon investigation, the defendant was identified as the burglar. He was arrested in the morning on 11 November 2015.
5. In his video recorded interview, the defendant explained in details how he burgled the Shop. He confirmed that he was the person captured in the Shop's CCTV footage. He claimed to be a renovation worker. Right before the offence, he finished work in Jordan. He admitted having used his renovation tools to commit the burglary. He also claimed that he did not know anyone from or have any relationship with the Shop. The defendant said he committed the offence because he owed others $80,000. He believed that as a big hair salon in Tsim Sha Tsui, the Shop had a lot of cash inside.
Mitigation & Sentence
6. The defendant is 53 and married with 2 twin sons (aged 13). He has 11 conviction records, which include 19 "Burglary" offences and 2 "Attempted Burglary" offences. He was last sentenced to a total of 32 months' imprisonment in December 2012 for 2 "Burglary" offences. He was released from prison at the end of June 2014. Defence lawyer Ms. LEE informed me that although the defendant's wife stays home and has no work, his family does not rely of social welfare.
7. In mitigation, Ms. LEE submitted that the defendant had tried to stay on the right track by being a renovation worker after his prison release. He committed the present offence because he owed others gambling debts. Ms. LEE stressed that no violence was used during the offence. No serious property damage was caused and the amount of cash stolen was not substantial.
8. Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. If gambling debt was the cause of committing the present offence, the defendant has no one but himself to blame.
9. The defendant is a repeated offender of burglary. In his video recorded interview, he claimed to be a renovation worker and admitted having used tools such as hammer, gloves and screwdriver to commit the offence. When he had difficulty opening the safe, he even went back to his workplace to get a crowbar. It is plain that the defendant knew very well what he was doing.
10. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. I have decided to raise the starting point to 3 years' imprisonment to reflect all relevant aggravating factors[1]. With the guilty plea, the sentence is reduced to 2 years. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 2 years' imprisonment.
11. In my view, the court can only do so much in deterring a persistent offender by way of a heavy penalty. Whilst the sentence must carry a deterrent effect, the increase in the sentence cannot go out of proportion. I accept that there are limits in our penal system. If the defendant refuses to reform and to live a law-abiding life, that is his choice, and he will have to face the consequences.
[1] In HKSAR v CHENG Wai Kai CACC 338/2007, Yeung JA (as he then was) held "The starting point [for burglary of non-domestic premises] can be adjusted upwards if there are aggravating circumstances such as (1) the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment;… (5) the offender has previous convictions, particularly previous convictions of similar nature;…" (at para.15)
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