HKSAR v. CHUNG CHING KIT

DCCC 889/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 889 OF 2014

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REASONS FOR SENTENCE

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1. The defendant has pleaded guilty to one charge of burglary contrary to section 11(1)(b) and (4) of the Theft Ordinance Cap 210.

2. The summary of facts admitted by the defendant show that at about 1130 hours on 7 December 2013 PW1 secured the main door and iron gate of a residential premises situate at Room 1346 Hing Fai House Tai Hing Estate Tuen Mun Kowloon.  PW1 is the mother of the resident of the premises.

3. At about 1500 hours she returned to find the main door and the metal gate of the premises prized open and the premises ransacked.  The ransacking of the premises was confined to the turning out of the cupboards and drawers.  A lock on one drawer had been damaged.

4. The following items being those specified in the particulars of the charge were missing:-

(a) 107 pieces of old HK$100 bank notes;

(b) 6 pieces of old HK$5 banknotes;

(c) 60 pieces of old HK$5 coins

(d) 60 pieces of old HK$2 coins

(e) 60 pieces of old HK1 coins

(f) HK$500 cash.

5. The case was reported to the police.  Upon investigation a 42cm long crow bar was seized as an exhibit.  2 fingerprints were lifted from a metal box inside the premises and upon analysis were found to match those of the defendant.

6. On 31 August 2014 PW2 PC 16892 arrested the defendant for the offence of burglary.  Under caution the defendant denied all knowledge about the burglary.

7. The defendant was interviewed under caution and the interview was video recorded.  During the interview the defendant admitted inter alia:-

(a) He had burgled the premises because he had no money.

(b) He had purchased the metal rod (that is the crow bar) and used it to prize open the main door. The metal gate was not locked at the material time.

(c) He took some money from the drawers near the bed. Since the banknotes were not in circulation he threw them away. He spent the cash which amounted to a few hundred dollars. He did not take anything else.

(d) He did not know the resident of the premises and had not previously visited the premises.

8. A clarification given by Ms Wong appearing for the prosecution confirmed :-

(a) The ransacking involved the turning out of the cupboards and drawers and also some damage however the damage was confined to the lock of a drawer.

(b) The notes and coins stolen from the premises were of no significant value.

9. Since the defendant’s fingerprints were found on a box inside the premises the evidence against him was not entirely dependent upon his admissions made when interviewed under caution.

10. The defendant has 9 previous convictions as a result of 6 court appearances.  He has 3 previous convictions for burglary and one for attempted burglary but these go back to 1992.  In respect of the burglary and attempted burglary convictions he was placed on probation.  The defendant was 17/18 years old at the time.

11. The most recent sentence was on 6 December 2012 for resisting a police officer.  He was sentenced to 1 month suspended for 12 months.  The period of suspension thus expired one day before he committed the present offence.

12. Ms Yang who appears for the defendant told the court in mitigation the defendant is 39 years old and single.  He lives with his parents and younger sister in Tuen Mun.  The defendant left school after completing Form 2 and took up work as a warehouse manager.  Prior to his arrest he had been working as a waiter earning around $10,000 per month.

13. The defendant’s girlfriend works in a pet shop earning $4,000  – 6,000 per month.

14. The defendant’s grandmother is 90 years old and has health and mobility problems and is now living in a rehabilitation centre.  As a result of his remand in custody the defendant has not able to visit her.  The defendant should have considered this before going out to commit the present offence.

15. Furthermore a shortage of money is no mitigation for committing an offence of burglary which despite the low value of the lost items and the minimal damage no doubt caused the resident and his mother distress and inconvenience.

16. The defendant is willing to compensate the victim to the tune of $11,710 which reflects the face value of the notes stolen and the cash.  However this is only a statement of future intention and cannot as such be taken into account save and except it does reflect a degree of remorse.

17. I have also been provided with a letter from the Wu Oi Christian Centre which relates the defendant’s previous contact with the Centre and his deep regret for the present offence.

18. A starting point of three years imprisonment for burglary of domestic premises is well settled – see HKSAR and Lau Pang CACC 252/2004.

19. The starting point may be increased where the burglary occurred at night and at the time the occupiers were inside the premises.  Other aggravating factors include wanton vandalism at the premises, targeting premises occupied by the elderly or infirm, the goods taken being of high value, the defendant operating as part of an organized gang or there being a pattern of repeat offending.

20. In the present case although the premises were ransacked there was only minor damage and I do not consider this to fall into the category of wanton vandalism.  This was a day time burglary committed at a time the premises were unoccupied.  There is no evidence which suggest the defendant was operating as part of an organized gang and the items taken were not of significant value.

21. The defendant does have previous convictions for burglary but these were some time ago.  It would appear given the date of commission of the present offence the defendant was well aware of the consequences of breaching his suspended sentence.  This together with the use of a crow bar to enter the premises suggests a degree of planning.

22. I take into account his remorse as expressed in mitigation by his counsel and in the letter from the Wu Oi Christian Centre which is also reflected by his plea of guilty to this offence.

23. Notwithstanding his previous convictions I cannot say those convictions which backdate to 1992 would put defendant into the category of being a recidivist burglar which would otherwise amount to an aggravating feature.

24. In all the circumstances and taking into account all that has been said on his behalf I will adopt 3 years as the starting point.  This will be reduced to two years to reflect his plea of guilty.  I can see no other mitigation which would serve to further reduce that term and the defendant is sentenced to two years imprisonment.