HKSAR v. FONG FOOK MING

DCCC 930/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 930 OF 2016

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REASONS FOR SENTENCE

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Charge and facts

1.  The defendant pleaded guilty to one charge of burglary of non-domestic premises which took place at a building under construction located at No. 208 Tung Chau Street, Sham Shui Po, Kowloon ("the Building").

2.  At about 1110 hours on 3 July 2016, a security guard of the Building was on patrol and spotted a shadow of a man moving at the scaffolding.  The case was reported to the police.  At 1132 hours, police constable PC 8532 saw the defendant climbing down from the scaffolding of the Building who was subsequently subdued by the police.

3.  Upon checking, it was found that some electric wires installed at the enclosed staircase between 1^st and 2^nd floors of the Building had been cut and taken away. Two bundles of electric wires and three bundles of copper wires originally installed at the said staircase and a pair of pliers were also found at a canopy of the rear lane of the Building.

4.  Upon arrest, the defendant admitted under caution that he had climbed into the Building earlier on to cut some electric wires for reselling.  He further admitted that he had placed the stolen pliers and electric wires on the canopy before climbing down to the ground upon police arrival.

5.  At the material times, the defendant entered the Building as a trespasser and stole two bundles of electric wires and three bundles of copper wires therein.

Mitigation

6.  The defendant is a 54-year-old divorced man and unemployed at the material times.  He has a long list of criminal records of about 50 previous convictions since 1991, ten of which are dishonesty related offences. There was one conviction of attempted burglary in 1993 and his last theft related conviction was in 2014.

7.  In mitigation for the defendant, Mr LI, Counsel for the defendant, urged the court, by submitting a number of authorities, to take a lower starting as usual given the defendant was an opportunistic burglar and the value of the stolen property was relatively small.  Mr Li also drew the court's attention to the fact that the stolen property was not found in defendant's possession at the time of interception. The prosecution case substantially depends on the defendant's own admission.

Sentence

8.  It is well established that the appropriate starting point should be 2½ years' imprisonment for a single offence of burglary of non-domestic premises by a first offender of full age in circumstances unattended by either particular aggravation or particular mitigation.

9.  In HKSAR v CHAU Man-ying, CACC 439 of 2011, Stock VP observed that for burglary of premises that were derelict with very few valuable properties, a materially lower sentence was warranted.  Keith J in HKSAR v Sim Ka Wing, CACC 450 of 2000 also said that " the conventional starting point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find. 

10.  As pointed out by Mr HUI of the prosecution, the present case can be distinguished from the cases submitted by the defence in that the building in question was not vacant but under construction where more valuable properties were expected to be stored therein.  However, I do accept that the defendant in the present case was an opportunist acting alone and the operation was not a well-planned or sophisticated one.  He committed the offence without bringing any weapons and made full and frank admission upon arrest without the stolen properties found in his possession.  The value of the stolen property cannot be regarded as substantial, which was estimated to be around $4,000 as said by the prosecution.  I note that the defendant does not have an impressive criminal record but I am not going to sentence him as a recidivist this time.

11.  Having considered all the circumstances, I take 24 months' imprisonment as the starting point.  The only effective mitigating factor is the defendant's plea of guilty, for which he will get a one-third reduction of his sentence.

12.  The defendant is therefore sentenced to 16 months' imprisonment.