HKSAR v. WONG WAI FUK AND ANOTHER

DCCC 936 & 1015/2015(CONS)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 936 & 1015 OF 2015 (CONSOLIDATED)

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Reasons for Sentence

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1.  Both defendants have pleaded guilty to a joint charge of burglary, contrary to the Theft Ordinance. The burglary took place on 7 March 2015 in a domestic premise in Kwong Fuk Estate, Tai Po.

2.  The facts are as follows.  The victim left home at about lunchtime, locking the premises.  He came back early evening to find the padlock on the iron grille was missing and the iron grille damaged.  His home had been ransacked and certain valuables stolen.  Those included cash, Hong Kong dollars and Japanese yen, two watches, a notebook computer, two mobile phones and four rings.

3.  The defendants were later arrested because they had left their DNA behind in the flat.  The 1st defendant’s blood was found on the grille probably because he hurt himself when cutting open the lock.  The 2nd defendant’s DNA from two cigarette butts were found.  One cigarette butt was inside the premises; one was outside. 

4.  Both defendants have pleaded guilty which is their best mitigation.  I have heard all that can be said on behalf of both defendants in mitigation.  Neither defendant have a clear record.  The 1st defendant has a particularly bad record and since he was 18 years old has been in and out of prison or drug addiction treatment centre. Obviously, the defendant has been a drug addict since he was 18 years old which has led to a life of crime in order to fuel his drug addiction.  In total, the 1st defendant has 26 previous convictions.  He has one similar to burglary in 2002, and there are many others that relate to offences of dishonesty.

5.  The 2nd defendant, although he is a similar age, does not have such a bad record.  In fact, the 2nd defendant’s first conviction was in 2014 when he was well over 30 years old.  He has six previous convictions which include theft, taking a conveyance without authority and going equipped for stealing.  Today’s burglary is the most serious conviction to date. 

6.  For the 2nd defendant, it really is not too late to turn away from a life of crime and prison.  In fact, it is not too late for the 1st defendant but he has a drug addiction to overcome.

7.  I have heard mitigation, background of both defendants as well as their family circumstances.  I have had two letters of mitigation from the 2nd defendant, one from himself explaining why he committed this offence as well as his family situation, and one from the prison chaplain where clearly he believes the defendant’s remorse is genuine.  He asks for leniency on the 2nd defendant’s behalf.

8.  Despite the differences in both defendants’ criminal records, their roles in this offence cannot be differentiated.  Both are equally culpable.  The normal starting point for a burglary of a domestic premise is a 3-year starting point where there are no aggravating or mitigating factors. 

9.  Here I take into account the defendants’ pleas, facts of the case, loss suffered by the victim as well as mitigation.  Having considered all those factors, I do not find there to be any aggravating or mitigating factors that exist.  So I will take a starting point of 3 years’ imprisonment.  As both defendants have pleaded, the defendants are entitled to a discount of one-third for that plea.  After that discount is applied, both defendants are sentenced to 2 years’ imprisonment for this offence.  Do you understand?

1ST DEFENDANT: Yes, I do.

2ND DEFENDANT: Yes, I do.