HKSAR v. IP WAI HUNG

DCCC 6/2021

[2021] HKDC 348

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 6 OF 2021

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to two charges of burglary, contrary to section 11 of the Theft Ordinance[1].

2.  Full particulars of the offences are set out in the facts admitted by the defendant today. In summary in August and September 2020 the defendant burgled two domestic premises in different buildings, both of which were under renovation and had scaffolding erected on the outside. 

3.  The defendant was arrested on 29 September 2020 and admitted committing both burglaries and that he had gained access by going to the top floor and then climbing down the scaffolding and entering the flats. 

Charge 1

4.  In the morning of 18 August 2020 Mr Chan, who resided at Flat A on the 9th floor of Po Wah Building in Shau Kei Wan, went out having first secured the doors and windows of his home.

5.  When Mr Chan returned home in the evening he found the window grilles had been removed and placed behind the sofa; the flat had been ransacked and USD12,900 cash was missing. 

Charge 2

6.  In the morning of 14 September 2020 Mr Ho and his wife, who resided at Flat D on the 20th floor of Federate Building in Sai Ying Pun, went out having first secured the doors and windows of their home.

7.  When Mr Ho returned home at around 2000 hours he was unable to enter because the front door was locked from inside.  Mr Ho climbed into his flat from the rooftop and found signs of ransacking. 

8.  HKD10,000, EUR500, JPY60,000; three pairs of sun glasses valued at HKD5,000; one gold bracelet valued at HKD2,500, one necklace valued at HKD4,000 and one paper bag were missing. 

9.  The police found on the rooftop a white plastic bag containing vegetables and a bottle of coconut water.  CCTV footage of Federate Building captured the defendant at 1939 hours on 14 September 2020 buying a bottle of coconut water in a nearby shop; carrying a white plastic bag; entering the building at 1941 hours and taking the lift to the 15/F and at 2008 hours taking a lift from the 21/F and leaving the building holding what appeared to be a white paper bag.  

Mitigation

10.  In passing sentence, I have carefully considered the oral and written submissions of Mr Lee, including that the defendant, who is 42, divorced, lives with his parents, who are in court today to support their son,  and worked as a fork-lift truck driver prior to his arrest, has been a drug addict since the age of 15[2].

11.  Mr Lee explains that with the onset of the pandemic the defendant could not earn enough money to support his drug addiction and therefore resorted to burglary to get quick money[3].

Starting point

12.  The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.   I am satisfied the proper starting point after trial on each charge is 3 years’ imprisonment. 

Persistent offender

13.  The defendant has appeared in court on 16 occasions amassing a total of 27 convictions, mostly for offences of dishonesty including 10 convictions for burglary.  The defendant last appeared in court on 31 May 2017 when he was sentenced in DCCC 129/2017 to a total of 3 years and 9 months’ imprisonment for four offences of burglary.  The defendant was released from prison on 19 May 2019[4].

14.  I am satisfied that the defendant is a persistent offender and enhance the starting point for each offence by 3 months to 3 years and 3 months’ imprisonment.  Giving the defendant full credit for his pleas of guilty reduces the sentence on each charge to 2 years and 2 months’ imprisonment. 

Confession

15.  Ms Chong confirms that the only evidence against the defendant on charge 1 is his confession.   In HKSAR v Ma Ming the Court of Appeal held the fact that a frank confession provides the only evidence which supports the charge did not entitle the defendant to a further discount over and above the one-third discount[5]. 

16.  The Court of Appeal in HKSAR v Ngo Van Nam reaffirmed the position that a judge was not obliged to give a discount over and above the one-third discount explaining that the mitigating factor of a confession was subsumed within the one-third discount[6].

17.  In my view the confession is more than just admitting the offence.  The defendant’s confession has resulted in the recovery of a gold bracelet which the defendant had purchased with the stolen money and later pawned[7]. Ms Chong informs the court the pawnshop owner has agreed to accept payment of $3,000 which will result in the victim of charge 1 recovering about $40,000 from the sale of the gold bracelet.  In the circumstances I reduce the sentence on charge 1 by 2 months’ imprisonment to 2 years’ imprisonment. 

Totality

18.  Where offences are committed in different premises against different victims on different dates, consecutive sentences should be imposed, subject to the totality principle[8].

19.  Taking into account all the circumstances of the two burglaries; the stolen property was USD 12,900 (charge 1) and  HKD10,000, EUR500, JPY60,000; sun glasses valued at HKD5,000 and jewellery valued at  HKD6,500 (charge 2); and the defendants confession on charge 1, I am satisfied that a total sentence of 3 years’ imprisonment properly reflects the defendant’s criminality on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[9]. 

Sentence

20.  The defendant is convicted and sentenced as follows:

Charge 1 – 2 years’ imprisonment; and

Charge 2 – 2 years and 2 months’ imprisonment with 12 months consecutive and 14 months concurrent to charge 1.

The total sentence to be served by the defendant is 3 years’ imprisonment.