HKSAR v. CHEUNG KING SAN

DCCC 628/2019

[2019] HKDC 1699

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 628 OF 2019

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Reasons for Sentence

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1.  The defendant, Mr Cheung, has committed three burglaries over the course of two days. They were all in premises in Kennedy Street in Wan Chai and were motorcycle and motorcar service and towing companies. They were all basically, it appears to be, next door to each other.

2.  The first offence was committed on 20th May from a company named “Wing Hang Motor Car Service” in Kennedy Street, Wan Chai.  Secured by roller shutters; they were found to have been opened.  $4,000 cash was missing.  Viewing the CCTV camera installed in the shop showed the defendant opening the roller shutters and entering the shop.

3.  The next day, two further burglaries were committed in similar sort of premises:  firstly, the Universal Towing Company.  Again, the roller shutter was secured but not locked, so the defendant was able to roll it up and get into the shop.  He was seen on CCTV camera.  He ransacked the shop.  There was nothing worth taking inside it and nothing was lost.

4.  The next burglary occurred shortly after.  The defendant was seen to have opened the roller shutters on a CCTV camera, entered the shop.  This was seen by other people.  Police arrived.  The defendant was still inside the shop.  They found him.  Nothing had been missing, but there were signs of some ransacking.

5.  After arrest, the defendant said he was intending to steal, which seems quite obvious. 

6.  On a video recorded interview, he said he was looking to see if there was any scrap metal inside the last premises so he could sell it.  The shop was unlocked.  He had opened the roller shutters without the aid of any tools.

7.  The defendant confirms these facts.  He was, to use a phrase, caught red-handed in the last one, the last burglary, and the total amount taken in these three burglaries is some $4,000 in cash.

8.  Turning to the defendant’s background, he is aged 41.  He is primary school level in education.  He has been a street sleeper in Hong Kong, although he does not seem to claim anything from the government.  He says he is not a drug user.  He is single, and been a street sleeper for some 10 years.  A somewhat sad background. 

9.  He has committed a large number of offences.  I am told by the prosecution of some 39 court appearances for various offences, 34 of them under the Theft Act, offences of dishonesty and, by my count, some five offences of burglary, most recently committed in 2014, where he served a sentence of 20 months’ imprisonment.  In fact, that is wrong.  The most recent was in 2017, where a sentence of 24 months’ imprisonment was imposed.  After that, in 2018 and 19, he has committed some various further offences of theft.

10.  In mitigation, the defendant says they were opportunistic crimes, not a great deal of money taken, certainly not sophisticated burglaries, some kind of petty crime, and two of the premises were premises that were easy to enter, presumably largely because there was nothing particularly valuable inside.

11.  Also, reference is made in the mitigation of the defence of HKSAR v Cheng Wai Kai, which shows the starting point for these kind of burglaries and the aggravating factors that could enhance that sentence.

12.  Now, turning to the question of sentence, defendant has -- the mitigating factor, the main mitigating factor, will be his plea of guilty, which will entitle him to a one-third discount. 

13.  There are potentially aggravating factors in relation to these burglaries. 

14.  Non-domestic premises burglary for a person of clear record who pleads not guilty, the starting point for sentence is 30 months’ imprisonment. 

15.  The aggravating factors, I do not propose to set them out, because most of them are not relevant here.  The offence is not carefully planned and skilfully executed.  He did them alone.  The premises are not substantial.  Defendant, I do not think I would describe as a professional burglar.  He is a rather poor amateur.  He has previous convictions of the same nature, which are an aggravating factor and will have to be reflected in the sentence. 

16.  The other potential aggravating factor is the offender commits multiple offences.  He has committed multiple offences here, but, as I observed to counsel, that can be taken care of in whether the sentences are run concurrently or consecutively.

17.  Another aggravating factor, of course, is he committed the offence shortly after release from prison, but I believe that could be taken into account in relation to the fact that he has previous convictions of a similar nature.

18.  What I shall do in relation to each of these burglaries is enhance the starting point by 6 months before I consider any deduction for plea of guilty, so that means that my starting point for each of these three burglaries will be 36 months’ imprisonment.

19.  The defendant is entitled to a one-third discount, which means the sentence for each of these three burglaries will be 24 months’ imprisonment.

20.  Now, I have to consider how the sentences should be served, whether they should be served consecutively or concurrently or partly consecutively and partly concurrently, and that means I must look at the overall total crimes that I am dealing with and what the overall total starting and finishing points should be for them.

21.  Of relevance to that is the fact that the defendant is a recidivist and long-term criminal with a very poor record.  Previous sentences of imprisonment seem to have had little effect in preventing him from committing further crimes.

22.  Other fact to consider is the rather petty natures of the crimes, although they are crimes of burglary, which are serious in themselves.

23.  I have decided that the overall sentence that I am going to impose will be one of 36 months’ imprisonment.

24.  I shall achieve that by ordering the 2nd and 3rd charges to be served concurrently to each other, but 12 months of those sentences to be served consecutively to the 1st charge.  That will be a sentence of 36 months’ imprisonment, which presupposes an overall starting point of 4½ years.

25.  That will be the order of the court:  a sentence of 36 months’ imprisonment.