HKSAR v. CHEUNG CHUN SHING, LUM

DCCC 2 /2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 2 OF 2014

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of Burglary, contrary to s.11(1)(b) and (4) of the Theft Ordinance, Cap.210. Particulars are that the defendant on 16^th October 2013, having entered as a trespasser Rooms 56-59, 25/F, Chun Shing Factory Estate, Nos. 85-89 Kwai Fuk Road, Kwai Chung, stole therein one desktop computer and miscellaneous documents.

Summary of Facts

2.  The charge address is the office of one Tai Sun Scaffolding Limited. Mr. Chan, the proprietor, secured the premises at around 7pm on 16^th October and left. At around 9:45pm, Mr. Chan through the closed circuit television feed to his mobile phone saw a male wearing a cap ransacking the office. The Police was immediately notified and a team of officers arrived shortly at the scene and intercepted the defendant just outside the office. A pile of documents belonging to the company and climbing equipment including a safety rope, climbing rope and a screwdriver were found scattered on the ground adjacent to where the defendant was standing. A desktop computer was also found on the floor, facing some smashed windows. Mr. Chan returned to the office and identified the defendant as one of the scaffolding workers employed by him since October 2012.

3.  The defendant was arrested and said under caution that he smashed a window to gain access into the office in order to steal things there because he felt he was ill treated by his employer and wanted to cause him trouble.

4.  Mr. Chan on the other hand said that he and his business partner had never held grudges with the defendant and their relationship was cordial. The defendant had from time to time asked for salary advances which the company did arrange.

Previous Convictions

5.  The defendant has 12 convictions, 9 of them are offences under the Theft Ordinance. He had never been convicted of burglary. His latest conviction was 7 years ago when he was sent to jail for 2 months for the offence of theft.

Mitigation

6.  The defendant is 33 years old. At the request of the defendant’s counsel, 2 psychiatrist reports were obtained before plea was taken. Both psychiatrists are of the opinion that the defendant is fit to plea. Mr. Omar for the defendant adopted the contents of the report regarding the defendant’s background as part of his mitigation. Both the defendant and his mother had written letters to the court in mitigation, seeking leniency.

7.  Mr. Omar pointed out that the only mitigating factors are the defendant’s plea of guilty and that the victim in the case suffered no loss. Mr. Omar also asks the court not to take the defendant’s previous convictions as an aggravating factor.

Sentence

8.  It is trite law that the proper starting point of burglary of non-domestic premises is 2 years and 6 months’ imprisonment in the absence of aggravating or mitigating factors[1].

9.  Although the defendant has multiple previous convictions, his last conviction was almost exactly 7 years ago. I will not use this as an aggravating factor against him.

10.  However, having heard the defendant’s mitigation, and given the circumstances of the case (particularly the use of climbing equipment including a safety rope, climbing rope and a screwdriver in the burglary), I find that the fact that the defendant might have been less inhibited to commit the offence after his voluntary drug use is no reason to depart from the guideline tariff sentence. I will therefore adopt a starting point of 30 months’ imprisonment, discounting it by one-third in recognition of the defendant’s guilty plea, and sentence the defendant to 20 months’ imprisonment.