HKSAR v. KO SHUN TAK

DCCC 763/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 763 OF 2010

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of burglary of commercial premises, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Chapter 210.

2.  Briefly in the evening of the 16th May this year the police saw the defendant climb into the shop of Wing Tai Marine Products Limited, a fishmongers located on the Ground Floor of No. 206 Tung Chau Street, Sham Shui Po.  A short while later the police saw the defendant climb out of the shop and throw a plastic bag on the ground.  The police intercepted the defendant and found seven fish belonging to the shop inside the plastic bag.  The fish were valued at $5,000.  Under caution the defendant admitted stealing the fish from the fishmongers.

3.  The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months imprisonment (see Attorney General v LUI Kam-chi [1993] 1 HKC 215).  Miss Gwilt submits the defendant was in the rear lane at the time looking for food and that on seeing a light in the fishmongers he climbed in and stole the fish.  Whilst there was apparently no ransacking of the fishmongers or any money stolen, this was not a burglary where food items of low value were taken.  There are no grounds to lower the starting point.

4.  On the other hand the defendant is properly to be regarded as a persistent offender having sixteen convictions, thirteenfor offences involving dishonesty, nine of which are for burglary.  The defendant was last before the court in September 2007 when he was sentenced to 2 years imprisonment having pleaded guilty to burglary of commercial premises.  On that occasion the sentencing judge increased the starting point from   2 years and 6 months imprisonment to 3 years imprisonment.  Previous sentences have clearly had no deterrent effect on the defendant, who continues to burgle commercial premises (see HKSAR v CHAN Pui-chi [1999] 2 HKLRD 830).

5.  I have carefully considered everything said on behalf of the defendant by Miss Gwilt. The defendant married in 1978, from which marriage there are three children, two sons and one daughter, who are now aged 33, 30 and 27.  After the defendant was sentenced to 10 years for robbery in 1986 his wife divorced him and refused the defendant access to his children, who were then all still very young. 

6.  After the defendant’s arrest for the present burglary his name appeared in the newspaper.  The two sons saw their father’s name in the newspaper and having lost contact with their father for over 26 years decided they wished to see their father to show their concern for him.  The two sons visited their father in prison and came to court last time to support their father.  Apparently work commitments prevent them coming to court today.  The background report confirms what I have been told in mitigation, in particular that the elder son is willing to support his father upon his discharge from prison. 

7.  Miss Gwilt submits the likelihood of the defendant committing further offences is therefore low.   The defendant now has a family who once again care for him.   After serving sentence one very much hopes the defendant will relish this opportunity to reunite with his children and never resort to crime again. 

8.  The sentence by reason of the defendant being a persistent offender should be no less than his last sentence and ought to be higher.  However I am prepared to accept that there is some prospect the family of the defendant will keep him from further offending.  In all the circumstances I extend leniency to the defendant by not increasing the starting point by reason of the defendant being a persistent offender. 

9.  Giving the defendant full credit for his pleas of guilty he is sentenced to one year and eight months imprisonment.