HKSAR v. WONG KA HO

DCCC1256/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1256 OF 2011

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Reasons for Sentence

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1.  The defendant, Mr Wong Ka-ho, pleads guilty to one count of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210. The particulars of the offence are that the defendant, on the 27th day of September 2011, in Hong Kong, having entered as a trespasser part of a building known as 1st Floor, No.1 Nam Cheong Street, Sham Shui Po, Kowloon, attempted to steal therein.

Facts admitted

2.  Nos.1-3 Nam Cheong Street, Sham Shui Po, Kowloon (“the building”) was vacant and had been acquired by Richfield Realty Limited.  The main entrance of the building was locked with metal chain and padlock by the company.  At about 1205 hours on 27 September 2011, the defendant went up to the 1st floor of the building.  He was holding a screwdriver and he dropped a chain on the ground outside a flat on that floor (“the premises”).

3.  He pulled open the iron grille of the premises and dragged seven pieces of window frame into the premises.  He went into the bedroom of the premises and loosened the window frames there with the screwdriver which he was holding.  He placed the window frames inside the bedroom.

4.  The police officers who had kept him under observation stopped him.  Upon search, the police officers found another screwdriver and a car key on the person of the defendant.

5.  Upon enquiries, the defendant admitted going there to see if there was anything valuable to take away, and the two screwdrivers, a pair of scissors, the window frames and a box of MTR train model were all taken in the building.  He further said that he had intended to loosen the window frame and take it to his vehicle parked nearby for sale.

6.  On being arrested for the offence of burglary, the defendant admitted under caution that, out of greed, he had gone to the building to see if there was anything valuable or funny to take away.

7.  The vehicle of the defendant was parked outside No.5-7 Nam Cheong Street.  It was searched by the police officers and a hammer and a crowbar were found.

Criminal record

8.  The defendant has 14 previous convictions, of which one was of dishonesty, which took place in 2002.  He was last convicted on 29 December 2009 of one count of obstructing a police officer in the execution of his duty and two dangerous drugs-related offences, for which he was sentenced to a total of 2 months’ imprisonment.

Mitigation

9.  The defendant is aged 27, married, and his wife is aged 25.  He is a van driver and a transportation worker.

10.  Counsel representing the defendant points out that the defendant has a supportive family.  He submits to court mitigation letters written by the defendant himself, his wife, his parents-in-law, his employer, his parents, an elder sister and a district councillor.  The defendant states in the letter that he feels shameful for having done wrong and is determined to turn over a new leaf, while the authors of the other letters all pass good comments on the defendant.  The employer of the defendant indicates that the company would continue to employ the defendant after the present matter is over.  The defendant and all of them ask the court for leniency.

11.  Counsel for the defence stresses that the building in question was built around the time of World War II and was in dilapidated conditions.  It had been acquired for redevelopment and had become vacant. The defendant entered the building at the spur of the moment, with the intention to scavenge for aluminium grille.  There was no prospect of any residents living or returning to the place.

12.  Counsel asks the court to treat the place as a non-domestic premises and to adopt a starting point of less than 3 years’ imprisonment.

13.  The counsel also reminds the court that there is no aggravating factor in the present case and the defendant pleads guilty to the offence at the first opportunity.

Sentence

14.  The Court of Appeal has laid down clear sentencing guidelines for the offence of burglary.  If the offence is committed in non-domestic premises, the normal starting point is one of 2½ years’ imprisonment and if the premises are for domestic purpose, the normal starting point would be one of 3 years’ imprisonment.

15.  The court accepts the mitigation put forward by the defence counsel that the building had been left vacant and there was no likelihood of residents living or returning there.  As such, the premises can be treated as being for non-domestic purpose.  The court also accepts that the chances of the defendant encountering any people during the course of burglary was extremely slim.

16.  Although the defence counsel points out that the defendant committed the offence at the spur of the moment, it is the view of the court that this was not an opportunist type of burglary.  The defendant parked his vehicle nearby and had the plan to take the valuable scrap metals to the vehicle for sale.

17.  Having considered the whole circumstances of the case, the court is, however, prepared to treat the premises as being for non-domestic purpose.  The court, therefore, adopts a starting point of 2½ years’ imprisonment.  Giving credit to the defendant for his plea of guilty, the court sentences him to 1 year 8 months imprisonment.