HKSAR v. PUN DAG KEES

DCCC705/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 705 OF 2011

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one offence of burglary. The premises that were burgled were Flats A and B in a building in Reclamation Street in Yau Ma Tei.

2.  The defendant has agreed the facts and I have convicted him of the offence.

3.  The facts agreed show that the person who rented the flat, which is on the 4th floor of the Kum Lam Building in Reclamation Street of Yau Ma Tei, was a repairman of water pipes and electronic appliances and he used the flats for storing his tools.  The flats are in a 15-storey building where the other flats in the building are for domestic use, but these flats were used as a storeroom.

4.  The burglary was committed on 13 May in the afternoon of that day.  It was detected by a security guard who heard noise coming out of the flat.  He suspected that there had been a break-in and so he reported to the police.

5.  The police arrived at the building and found the defendant at the first floor of an adjacent building which was attached to the building where the flats were.  The officers were suspicious.  They stopped the defendant.  He was in possession of a bundle of copper wire and a plastic bag which contained some other bundles of electric wires.  It was found that these items had been taken from the flat.

6.  It was discovered that the window of the flat had been prised open.  Half of the window frame had been broken and that was how entry had been gained into the premises.

7.  The defendant admitted that he climbed into the flat through a window which had been left open.  He stole the electric wires with a view to sell them and he fled out of the flat through the window.

8.  The value of the stolen goods was estimated by the victim to be only about $100, whereas the cost of repairing the window frame was $1,200.

9.  The defendant admitted his antecedents, which included a criminal record.  The defendant had three previous convictions for theft in 2003.  He had been fined and sentenced to a 1-month prison sentence suspended for one year.  In 2004 the defendant was convicted for possession of dangerous drugs and sentenced to a Drug Addiction Treatment Centre, and finally in 2005, he was conditionally discharged for criminal damage.

10.  The defendant was at the time unemployed.  The defendant is 31 years old.

11.  In mitigation, I am told that he is single.  He was only educated up to the level of P6 and his family members are in Nepal.  When he is in work, he works as a construction site worker and can earn up to $7,000 per month.  He had been unemployed for some 7 months.  He was undergoing financial hardship and he did the offence to obtain some money.

12.  In mitigation, it was said the value of the goods stolen was very low.  All the goods were recovered.  No weapon was used. There was no confrontation.  The defendant has co-operated with the police throughout and pleaded guilty.  He is remorseful and he understands the serious nature of these kind of offences.

13.  Of course, there is a well-settled guideline for sentencing in these cases.  Of course, it is necessary to determine how the courts approach the premises that were burgled, and there is a settled difference of approach between the burglary of domestic premises and of a non-domestic premise.

14.  The building here is for domestic use and, of course, there is the likelihood of people being present at the building at all times.  The premises that the defendant decided to burgle were not used for domestic use.  They were used as a storeroom, which is a commercial use of the premises, and that was the premises that he actually burgled.

15.  For that factual reason, I consider it appropriate to proceed as if this were a non-domestic premises burglary.

16.  However, the premises are in a building used for domestic purposes.  The premises themselves were not occupied but the building was.  The burglary was committed in the afternoon where there are likely to be people about.

17.  For those reasons, I do not consider that I should in any way mitigate the sentence for a non-domestic burglary.  Some of the risks attached to this burglary are concomitant with those for burglary of a domestic premise.

18.  Taking all these factors into account, I will take a starting point of 30 months’ imprisonment.

19.  I will reduce that by one-third to 20 months’ imprisonment for the defendant’s plea of guilty; the sentence to be one of 20 months’ imprisonment.