HKSAR v. KO CHUN FUNG

DCCC 867/2021

[2022] HKDC 1437

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 867 OF 2021

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

Charges

1.  The defendant pleaded guilty to 3 charges:-

(a)  Burglary on 14 April, 2021 that he stole 2 pairs of shoes

(b)  Theft on 5 June, 2021 that he stole one master card

(c)  Attempted theft on 6 June, 2021 that he attempted to steal from a motor cycle.

The Facts

Charge 1

2.  PW1 lived in a sub-divided flat with a common area where he placed his 2 pairs of shoes (total at $4,000)  on a shoe rack, the door to the common area was opened at the material time.

3.  PW1 found his shoes were missing, CCTV captured that the defendant took away his shoes at around 12:16 am on 15 April, 2021. 

Charges 2 and 3

4.  On 6 June 2021 at around 2:20 am, PW2 was on his way home and saw the defendant was rummaging through the bag attached to his motorcycle.  Inside that bag it contained a motorcycle cover, two raincoats and some car repair tools. 

5.  PW2 confronted the defendant who stated he was looking for a plastic bag.  Case was reported. 

6.  At 2:35 am, the police arrived and arrested the defendant for “attempted theft”.  Under caution, the defendant replied that the bag was already opened when he walked past. 

7.  During a body search, a master card in charge 2 was found inside his wallet.  The defendant was arrested for “theft of the credit card”.  The defendant said under caution that he picked up the credit card from the ground in Kwun Tong on 5 June, 2021.

8.  The defendant was further arrested for charge 1, he said under caution that he stole the 2 pairs of shoes which appeared to be valuable to him, he had sold them for a few hundred dollars in Sham Shui Po as he was in need of money. 

Criminal Record

9.  The defendant’s eleven criminal convictions began in 2011 to 2022 with 3 convictions of burglary (2019 and 2020), 4 convictions of theft (in 2011 and 2019), other offences involved gambling and driving offences. 

10.  The defendant was released from prison in January, 2022. 

Mitigation

11.  The Defendant is now 26 years old, he is single, but have 2 young children aged 6 and 7 years old.  Before the present offence, the defendant and his children are all living with his mother.

12.  The defendant is the sole bread winner of the family.  He was previously a construction site worker earned about $25,000 per month and later took up a job in his grandmother’s restaurant earned about $27,000 per month.

13.  He worked hard to support his family.  Now they have lost the financial support from the defendant.

14.  The defence submitted that all the 3 offences were committed out of greed and was totally unpremeditated.  As to charge 2 and 3, the owner suffered no loss.  It was an opportunistic theft in charge 3 as well.

15.  The defendant is very remorseful for committing the present offences.  He is willing to compensate PW1 for the loss of his shoes. 

Sentence

16.  As to charge 1, it is well settled that for burglary in domestic premises, it attracts a sentence of 3 years. 

17.  However, as the summary of facts showed that the door to the common area of those units were unlocked and opened, I take a starting point of 2½ years. 

18.  The defendant was released from prison in January, 2021 and was arrested for the present offences, there is a good reason to enhance the starting point by another 3 months. 

19.  The sentence in charge one arrives at 33 months, given the 1/3 discount, it comes down to 22 months.

20.  As to charge 2, there is no evidence to suggest how did the defendant come about in possession of the credit card except of his own words.  I accepted that there is no loss suffered by the card owner. 

21.  I consider that a starting point of 6 months is appropriate, I reduce the sentence to 4 months after 1/3 discount. 

22.  As to charge 3, the defence said that it was an opportunistic theft as the storage box of the motorcycle was unlocked.  Nonetheless, if the motorcycle owner had not walked past, the offence might not be discovered. 

23.  I consider the appropriate starting point should be 9 months, reduced to 6 months after 1/3 discount. 

24.  I also ordered that 2 months from charge 2 and 3 months from charge 3, a total of 5 months to run consecutively to charge 1. 

Order

25.  The total sentence is 27 months.