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DCCC 456/2021
[2021] HKDC 1129
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 456 OF 2021
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| Present: |
Ms Yanky Lam, counsel on fiat,for HKSAR |
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Mr Steve Chui instructed by S.Y. Fung, Solicitors,
assigned by the Director of Legal Aid, for the defendant |
| Offence: |
Burglary (入屋犯法罪) |
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REASONS FOR SENTENCE
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1. The defendant pleads guilty to one charge of burglary, contrary to section 11 of the Theft Ordinance[1].
2. Full particulars of the offence are set out in the summary of facts dated 1 September 2021, admitted by the defendant today.
3. In summary the defendant burgled a church which at the time was under renovation. Construction tools were kept inside the church for the renovation work. Photographs of the church have been submitted to court.
4. At around 7 p.m. on 15 December 2020 the police saw the defendant acting furtively outside the church. The police observed the defendant pulling open the loose wooden hoardings at the doorway of the church and entering the church[2].
5. Inside the church the defendant, who was wearing a pair of gloves and holding a flashlight, was seen ransacking a tool box[3]. DPC 6813 approached and intercepted the defendant.
6. Under caution and in a video recorded interview the defendant admitted, inter alia, entering the church to steal construction tools to sell because he had no money for food.
Mitigation
7. In passing sentence, I have carefully considered the oral and written submissions of Mr Chui including that the defendant is 61, divorced, lives alone and prior to his arrest worked as a casual decoration worker[4].
8. Mr Chui has also read to court the defendant’s mitigation letter in which he says he has reunited with his ex-wife and plans to remarry after serving his sentence; that he suffers from diabetes and has to take medication daily and asks for leniency.
Starting point
9. The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months’ imprisonment.
10. Mr Chui explains that the burglary was opportunistic when the defendant walked past and noticed the church under renovation. I do not agree this was an opportunistic burglary in that the defendant walked passed an open door to steal food or items of little value[5]. From the photographs it can clearly be seen that the construction tools were valuable.
11. Lower starting points have however been taken where premises are under renovation[6]. In the circumstances I am satisfied a starting point of 2 years and 3 months’ imprisonment is appropriate.
Persistent offender
12. The defendant has appeared in court on 20 occasions amassing a total of 24 convictions, mostly for offences of dishonesty including 8 convictions for burglary.
13. The defendant last appeared in court on 10 January 2019 when he was sentenced in DCCC 548/2018 to a total of 26 months’ imprisonment for three offences of burglary. I note all three burglaries were also of premises under renovation[7]. The defendant was released from prison on 29 October 2019[8].
14. I am satisfied that the defendant is a persistent offender and enhance the starting point by 6 months to 2 years and 9 months’ imprisonment.
15. Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 1 year and 10 months’ imprisonment.
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(D. J. DUFTON) |
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District Judge |
[1] Cap 210.
[2] Photographs 13 & 14 show the outside of the church.
[3] Photographs 2 & 3 show the gloves. Photograph 6 show the flashlight. Photographs 4, 5 & 7 show the tool box. Photograph 9 also shows construction tools inside the church.
[4] See §2 of the skeleton submission on mitigation.
[5] See for example HKSAR v Cheung To Ming [2006] 2 HKLRD 260; HKSAR v Chau Man Ying CACC 439/2011 and HKSAR v Hai Chung Po CACC 115/2013.
In reaching this finding I disregarded that the defendant was seen wearing gloves and using a flashlight. In court Ms Lam informed the court that in the witness statement the police officer did not say he saw the defendant wearing gloves or using a torch outside the church. In the video recorded interview, the defendant told the police he picked up the gloves from a table inside the church and that when asked what was inside his rucksack replied the flashlight. This part of the video recorded interview was not included in the summary of facts. Mr Chui explained that the defendant kept the flashlight because his home often had no electricity.
[6] See for example HKSAR v Yeung Kwok Sang CACC 4/2006; HKSAR v Chau Man Ying CACC 439/2011 and HKSAR v Lee Chiu Yui [2015] 1 HKC 323.
[7] See the Reasons for Sentence in DCCC 548/2018.
[8] See §(f) of the antecedent statement.
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