HKSAR v. WONG KWOK TUNG

DCCC594/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.594 OF 2010

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Reasons for Sentence

1.  The defendant faces one charge of burglary, contrary to s.11(1)(b) and (4) of the Theft Ordinance, Cap.210. It is alleged that the defendant on 29^th March 2010, having entered as a trespasser part of a building known as Room 16, 4^th floor, Yue Wah Mansion, Nos. 407-431 Kwun Tong Road, Kwun Tong, Kowloon, attempted to steal therein one bag.

2.  The defendant pleaded guilty, admitted to the summary of facts and was duly convicted.

Summary of facts

3.  Police arrived at the charge premises at about 3:46pm on the charge date. The iron gate and door were left ajar. Officers entered the flat to find the defendant ransacking the bedroom. The defendant was intercepted and searched. 2 handbags, a saw, 3 screwdrivers, a cutter, a torch, 3 pairs of white gloves, a bundle of plastic strings, a handkerchief and a knife were found inside the defendant’s rucksack.

4.  In the subsequent video recorded interview conducted on the following day, the defendant admitted entering the premises to find some items for his own use.

5.  The family previously residing at the premises had already moved out of the flat at the time of the burglary. The daughter of the owner of the premises confirmed that she had locked the metal gate and closed the door when she lasted returned to the flat in September 2009. The daughter confirmed that one of the handbags seized from the defendant’s rucksack belonged to her.

6.  Upon inspection, it was found that the iron grille of the lock of the metal gate of the premises was cut and there were prizing marks on the metal gate.

Previous convictions

7.  The defendant has 19 previous convictions, with 4 relating to theft or similar offences. 3 of those were for robbery in 1989. There was 1 previous conviction for burglary in 2003.

Mitigation

8.  The defendant is 36, educated up to primary 4 level. It was submitted that the main mitigating factor is his plea of guilty. The defendant had indicated that he would plead guilty at the earliest opportunity. The family had moved out of the premises by September 2009 and there were no people residing in the premises at the time of the burglary. There is however no evidence, nor was it disclosed in mitigation to show whether the choice of the vacated premises was by design or by chance. Nevertheless, there was no loss of property as a result of the burglary. During the investigation, the defendant was cooperative as seen from the video recorded interview he took part in. It was submitted that the criminality of the offence is not like the normal kind of burglary whereby someone was living in the premises. Mr. Kwok invited the court to use a lower starting point and give maximum discount for the defendant’s guilty plea.

Sentencing authorities

9.  For a burglary committed at domestic premises, without further aggravating factors, the normal starting point is one of 3 years’ imprisonment (see Attorney General v. Lo Ching Fai [1996] 1 HKC 747). It is not disputed that the charge premises is a domestic premises.

Sentence

10.  I find that the premises is a domestic premises. The defendant is a repeated offender, with a conviction for burglary in 2003 when he was sentenced to 3 years and 3 months' imprisonment, and the latest conviction for assaulting a police officer in 2009 when he was sentenced to 3 months' imprisonment. The defendant was last released from prison on 10^th December 2009. Within less than 3 months, he committed the present offence. I find that the fact that the defendant is a repeated offender is an aggravating factor, as well as the fact that he had decided to offend again within such a short time from his release.

11.  I find that there are no other mitigating factors except for the defendant's guilty plea to cause me to depart from the sentencing guidelines. I further find that as a result of the aggravating factors, I have to increase the starting point of his sentence. I will adopt a starting point of 3 years and 6 months' imprisonment, granting the full 1/3 discount for the defendant's guilty plea, the defendant is sentenced to 28 months’ imprisonment.