HKSAR v. CHUNG HO YAN

DCCC 384/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.384 OF 2013

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Reasons for Sentence

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1.  The defendant pleaded guilty to 2 charges of burglary, contrary to s.11(1)(b) and (4) of the Theft Ordinance, Cap.221. It is not disputed that the premises burgled was a domestic premises.

Summary of Facts

Charge 1

2.  PW1 and PW2 reside at the burgled premises together with their son. The defendant resided at the unit next to theirs.

3.  At about 3:30pm on 10^th March 2013, PW1 was home alone. The defendant knocked on the door and asked to use their fixed line telephone. PW1 agreed and let the defendant in. Once inside the defendant was seen to be using the fixed line phone. PW1 then left the flat to hang up clothes at the rear staircase of the building. PW1 returned about 5 minutes later and found the defendant had left.

4.  PW2 returned home later that day and found that $900 had gone missing from her handbag which was in her bedroom.

Charge 2

5.  4 days later on 14^th March, PW2 was alone in the flat and was sleeping in her bedroom at around 2:30pm when she heard noises coming from her son’s bedroom. PW2 went to check and found the defendant there. PW2 asked and the defendant explained that he had climbed into their flat through the window in the kitchen. The defendant also told PW2 that he had entered their flat before and had stolen $900 cash.

6.  PW2 informed PW1 and her son, who then came home. PW2’s son found that his bedroom had been ransacked but nothing was missing. He also found that the padlock in the window frame of the kitchen window had been cut and there was a saw in the kitchen that did not belong to the family. The case was reported to the Police.

7.  The defendant was later arrested and said under caution that he gained entry to PW1’s flat on 10^th March by asking to use their fixed line phone. When PW1 left the flat, the defendant went into one of the bedrooms and stole $900 cash from a handbag. The defendant had already spent the money on drugs.

8.  The defendant also admitted to cutting the padlock that was in the window frame of the PW1’s kitchen window and then entering their flat to ransack the bedroom of PW2’s son. The defendant entered their flat to steal money.

Previous convictions

9.  The defendant has 3 previous convictions, with 2 being for theft. His latest conviction was on 9^th May 2002 for theft when was sentenced to the Drug Addiction Treatment Centre.

Mitigation

10.  The defendant is a 39 year old with limited education. He worked as a casual manual labour earning on average $2,500 a month. His parents have passed away and he has no one in Hong Kong. He and his neighbours barely knew each other. At the time of the offence, the defendant was in desperate need for money in order to sustain his drug addiction.

Sentence

11.  It is trite law that the usual sentence for burglary of a domestic premises is 3 years’ imprisonment after trial.

12.  Having heard the defendant’s mitigation, I find that there is nothing that would allow me to depart from the guideline sentence. I will not take the defendant’s record as an aggravating factor since the latest conviction was some 10 years ago for theft. As for his frank admission to the victims and the Police, I find that to be sufficiently covered by the usual one-third discount given for his guilty plea.

13.  I find that neither charge 1 nor 2 were opportunistic burglaries. In relation to charge 1, the defendant made up an excuse and exploited the fact that he was the neighbour of the victims in order to gain entry into their flat to steal. Once inside he pretended to be making a phone call to make good on his false pretense which must have caused PW1 to be off his guard. Once he was out of the flat, the defendant stole.

14.  In relation to charge 2, the defendant used a tool to pry open the padlock and then climbed into the victim’s flat. Once inside, he ransacked the bedroom of PW2’s son. That also was not an opportunistic crime.

15.  I will therefore adopt a starting point of 3 years’ imprisonment in relation to both charge 1 and charge 2, reducing them by one third in recognition of the defendant’s pleas of guilty and sentence him on each charge to 2 years’ imprisonment.

Totality

16.  The defendant committed the 2 offences on different days but on the same premises. He had planned his entry on both occasions. In relation to charge 2, he had used tools to cut open the padlock in order to gain entry.

17.  I will order that 1 year of the sentence in charge 2 be served consecutively to the sentence in charge 1. The defendant is therefore sentenced to a total of 3 years’ imprisonment.