HKSAR v. ENG DUT-FON

DCCC 1223/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1223 OF 2009

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of burglary, namely that he entered as a trespasser part of a building known as the rooftop, Nos. 40-42 Tung Choi Street with intent to steal, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Chapter 210.

2.  At 4:30 p.m. on the 5th October last year the police saw the defendant looking around on the rooftop of the building at Nos. 36-38 Tung Choi Street, a residential building. The defendant then went on to the adjacent rooftop at Nos. 40-42 Tung Choi Street and looked around furtively. At 4:35 p.m. the police intercepted the defendant who admitted he had gone to the rooftop intending to steal any valuables from the rooftop if the door or window of any flat had been left open.

3.  The correct starting point for burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is three years imprisonment (see Attorney General v LUI Kam-chi [1993] 1 HKC 215 as applied in Attorney General v LO Ching-fai [1996] 2 HKCLR 19).

4.  The defendant with intention to steal was trespassing on the rooftop, which is part of the common parts of the building. Mr Bedford informs the court the rooftop was not occupied at the time. The structures on the rooftop seen in the photographs are the entrances leading to the staircases of the building. In the circumstances a lower starting point is appropriate, in particular as there is no evidence the defendant had been looking in the flats on the various floors of the building. I take two years imprisonment as my starting point.

5.  The defendant however is properly to be regarded as a persistent offender having eleven convictions, eight for offences involving dishonesty, with two for burglary in 1998 and 2000. I am satisfied this factor increases the starting point to two years and six months imprisonment (see HKSAR v CHAN Pui-chi [1999] 2 HKLRD 830).

6.  In passing sentence I have carefully considered everything said on behalf of the defendant by Miss Wong both in her most helpful written submissions and oral supplement in court.

7.  Miss Wong asks that the defendant be given the usual one third discount by reason of his plea of guilty (see paragraphs 20-22 of the written submissions in mitigation and the written supplemental submissions filed in court yesterday). I disagree.

8.  In R v NG Wing-kwong CACC 62/1995 as applied in HKSAR v CHUI Chi-wai & Another (No 2) [2000] 1 HKLRD 704 and HKSAR v KUOK Wai-hong CACC 1/2004 (English digest at [2004] 3 HKLRD I7) the Court of Appeal held that the trial judge was not obliged to give the full one third discount where the plea only materialises at a retrial.

9.  The defendant’s plea cannot be regarded as a timely plea. This was a retrial following Her Honour Judge Toh ordering a trial de novo in March this year on the second day of trial, after a police officer revealed the defendant had drug related convictions. I do not agree the trial was aborted on a technical point. The criminal record was revealed as a result of the conduct of the defence when Miss Wong asked the police officer in cross-examination if he later came to know the defendant was a drug addict (see pages 81L-83K of the trial transcript). In my view a discount of one quarter is appropriate.

10.  I am however satisfied that additional weight should be given to the defendant for his cooperation with the police, in particular his immediate confession as to his purpose on the rooftop, resulting in the laying of the charge of burglary as opposed to some lesser charge such as loitering. In these circumstances I will give the defendant a one third discount.

11.  Taking two years and six months imprisonment as my starting point the defendant is sentenced to one year and eight months imprisonment.