HKSAR v. HO MAN SHING

DCCC 494/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 494 OF 2015

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REASONS FOR SENTENCE

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1.  The defendant has been convicted on his own plea of 2 charges, one being theft and another being domestic burglary.

Summary of facts

2.  The facts in support of the defendant’s plea can be briefly stated as follows: At the material time, Ms Guan, victim of Charge [1] lived at the address as particularised in both charges together with her father Mr Koon, the victim of Charge [2].  Ms Guan came to know the defendant on 10 April 2015 and they became friends.  The defendant visited Ms uan’s home the next morning. During the defendant’s presence at her home, Ms Guan used the toilet for about 10 minutes and it was believed that the defendant took the opportunity to steal HK$900 and RMB  400 from her.

3.  Later the defendant suggested that he went out to buy Ms Guan some breakfast.  Ms Guan told the defendant to grab a set of spare keys to her home before he left.  The defendant did as told, who later returned with 2 McDonald’s breakfast sets.  After finishing their breakfasts, they both left the premises.

4.  In the same night, Ms Guan returned home and discovered that her parents’ cabinet door was open.  She immediately called her father Mr Koon by phone.  Fearing that some properties might have gone missing, Ms Guan made a report to the police.  On 12 April 2015, the police arrested the defendant, who frankly admitted that he stole from Ms Guan’s home.  The defendant said he took the spare keys, later broke into Ms Guan’s home and stole HK$6,000 from the wooden cabinet in Mr Koon’s bedroom. 

5.  CCTV footage confirmed that the defendant did enter and leave Sau Man House, Chai Wan Estate (where Ms Guan’s home situated) around noon on 11 April 2015.

Mitigation

6.  In mitigation, defence counsel urges the court to be as lenient as possible towards the defendant who has difficulty to have his ends met.  In fact financial difficulty is the sole reason for committing the present offences.  The defendant is the eldest son of his old parents, both of whom suffer health problems.  His own family, comprising his wife and a 1 year old daughter, lives in the Mainland.  Defence counsel asks the court to treat the defendant as an opportunistic thief, who did not have a detailed plan in his mind.  He just seized the chance as and when it arose.

7.  Apart from his plea, the defendant also offers to pay restitution to the victims in the sum of HK$2,250 and RMB 400 as mitigation.  He made payment in court through the assistance of his family.

Sentence

8.  I have carefully considered the facts of the case and everything that could possibly be said on the defendant’s behalf by Mr Yau.  I have also read various mitigation letters handwritten by the defendant, his family members and friends.  The defendant says he would very much hope to turn a new leaf after release from prison.

9.  The defendant has two previous similar and one dissimilar convictions.  He could not therefore expect lenient treatment in the same way as a man with clear record.  He however pleads guilty to both charges, which is to his credit, so he is entitled to full one-third discount.  Voluntary restitution is a powerful mitigating factor which would justify further reduction. 

10.  For Charge [2] there is clear guideline from the Court of Appeal which this court cannot depart lightly.  A starting point of 3 years is appropriate in the circumstances.  As to Charge [1], there is no guideline as such but I consider it a serious matter as it involves certain degree of breach of trust.  As a matter of facts, both charges involve the same aggravating feature.  After consideration, I will adopt 12 months as the starting point for Charge [1].  

11.  For Charge [1], the sentence is 8 months imprisonment.  For Charge [2], the jail term should be 2 years after plea.  For restitution, I make a further reduction of 2 months for each charge.  Because of totality I order both terms to run concurrently. 

12.  I hereby impose a term of 22 months imprisonment.