HKSAR v. CHEUNG YUK SING, YORKS

DCCC 125/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 125 OF 2016

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Reasons for Sentence

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1.  The defendant pleaded guilty to one charge of burglary of domestic premises.

2.  The facts admitted by the defendant revealed that Mr Koo’s mother-in-law resided at Room 2126, Tsz Fung House, Fung Tak Estate in Kowloon (“the flat”).  She passed away on 10 December 2015.

3.  On 13 December 2015 Mr Koo locked the wooden main door but not the metal gate of the flat before he left.  On 16 December 2015, he returned to the flat and found that the wooden door had been prised open.  There was no ransacking sign in the flat and nothing appeared to have been stolen.  The case was reported.

4.  On 18 December 2015, Police Constable 1375 intercepted the defendant outside Room 2128 of Tsz Fung House.  Under caution, the defendant admitted that he had entered the flat to see if there was anything to steal, but he found nothing valuable and left.  He was then arrested.  Under caution, he admitted that he entered the flat on 15 December by knocking open the wooden door with his shoulder, but he left after discovering that there was nothing valuable in the flat.

5.  During a subsequent video-recorded interview, he admitted he was hungry and therefore entered the flat with intent to steal some food.  He stayed inside for about one to two minutes.  He knew the occupant of the flat had passed away.

6.  The defendant is aged 43.   He has three previous convictions and is under a suspended sentence of 2 months’ imprisonment which was imposed on 11 August 2015 in Fanling Magistracy for a customs offence.

7.  Mr Choi, counsel for the defendant, said in mitigation that the defendant did not use any instrument to break open the flat, he only pushed the door open with his shoulder.  It was not a planned offence.  The offence was committed because the defendant was so poor that he could not afford to buy any food, he therefore entered the flat only with the intention to steal food. 

8.  The claimed dire situation was a concern of the court in the consideration of his sentence and hence the case was adjourned for a pre-sentencing background report.  Such a report has been prepared by Miss Leung, a probation officer of the Social Welfare Department.  Miss Leung reports that, “All information was solely given by the accused without any documentary proof.  The accused did not provide any contact means of his wife...”

9.  The defendant disclosed to the probation officer that he lived alone in a singleton public housing unit next to the flat in this case.  He needs to pay a monthly rental of $900.  Reportedly, he has a wife in the mainland who has two daughters born in the previous wedlock.  As a Hong Kong/mainland truck driver earning $18,000 a month, he contributed $6,000 to his wife until October last year when he became unemployed. 

10.  At the interview, the defendant denied his intention to steal in the flat, he claimed to have taken a medicine for his insomnia before he committed the present offence.  He then had auditory hallucination and heard someone shouting for help in the flat.  He pushed into the flat with the aim to save someone.  He saw nobody there and returned to his own flat.

11.  Having taken instructions from the defendant, Mr Choi confirms that the defendant is maintaining his plea of guilty.  He says the defendant agrees though having taken some drugs, he was not under the influence of the drug when he committed the offence.  At the time of committing the offence, he knew what he was doing and that he was wrong.  He did enter the flat with the intention to steal.

12.  In mitigation, Mr Choi maintains the mitigation that the defendant only entered the flat with the intention to steal food because he was hungry and had no money even for a cup noodle.  However, upon the court’s indication that such assertion through a legal representative in court would not be accepted, the defendant elects not to adduce any evidence to support his claim.

13.  It is then put forward that the imprisonment of the defendant will lead to a breakdown of his marriage as he has been verbally told that a single permit for his wife to join him in Hong Kong would be issued soon and his presence will be necessary for the collection of the permit.

14.  In mitigation at the last hearing, Mr Choi cited two cases, HKSAR v Sin Ka Wing CACC 450/2000 and HKSAR v Kwok Wing Kam CACC 394/2010.  Mr Choi submitted that a starting point lower than the usual 3 years’ imprisonment for domestic burglary should be adopted. 

15.  In his further mitigation, Mr Choi relies on another case HKSAR v Ma Ming CACC 23/2012.  He refers to paragraph 18 of the judgment when the Court of Appeal says:

“Where a suspect under arrest voluntarily discloses to a law enforcing authority the details of his commission of certain crimes so that the authority obtains evidence of his guilt, that certainly is an element of leniency.”

16.  Insofar as the last suspended sentence is concerned, Mr Choi asks the court not to activate the suspended sentence as that offence is totally unrelated to the present offence. 

17.  The usual starting point for a single burglary of domestic premises by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.

18.  The flat while unoccupied at the relevant time was not a derelict place.  The wooden main door of the flat had been locked and was found to be prised open.  Even accepting that no equipment was used by the defendant, the door must have been forced open.  The offence cannot be considered as a case of opportunistic burglary. 

19.  The claim that the only intention of the defendant was to steal food for himself is unsupported by any evidence.  Indeed I find the assertion incredible.  The defendant used to be gainfully employed as a Hong Kong/mainland truck driver earning a monthly income of $18,000. Though unemployed for two months, he made no application for public assistance.  I find it unbelievable that he could not afford to buy a packet of instant noodle.

20.  Mr Choi stresses that the defendant already claimed in the videoed interview that he was hungry and entered the flat to steal food.  However, it should be noted that his first response at the time of arrest was different.  Before and after caution,   upon arrest, he said he entered the flat to see if there was anything to steal, but he found nothing valuable and left. 

21.  I reject the mitigation that the defendant only committed the offence in order to steal food for his own consumption. 

22.  The case of Kwok Wing Kam cited by Mr Choi is distinguished.  The defendant having gained entry stole nothing only because he found nothing valuable to steal.  I would acknowledge that the flat was unoccupied at that time and no one was alarmed when the offence was committed.  Nothing was stolen.  There was no sign of ransacking. 

23.  In all the circumstances, the customary starting point can be lowered to 2 years and 3 months’ imprisonment. 

24.  The claim or the possibility that his wife might not be able to get her one-way permit for Hong Kong or any family hardship as a result of the defendant’s incarceration, in my judgment, cannot be regarded as an effective mitigation in the circumstances of the case.  The only effective mitigating factor is the defendant’s plea of guilty. 

25.  While time has been wasted in the inquiry by the court as to the propriety of the plea of guilty, I would still give the defendant one-third reduction for his plea of guilty.  That has taken into account of the defendant’s confession of guilt to the police of the present offence.  In the result, the defendant is sentenced to 18 months’ imprisonment for the current offence. 

26.  The defendant committed the current offence four months after a suspended sentence was imposed in Fan Ling 4159/2015.  He was therefore in breach of the suspended sentence.  The fact that the current offence is of a different character is not a good reason for non-activation of the suspended sentence. 

27.  Having considered all the circumstances and the principle of totality, I find that it is just and appropriate to activate the suspended sentence of 2 months’ imprisonment in Fan Ling 4159/2015 and order it to run wholly consecutively to the term of imprisonment for the current offence.