HKSAR v. MOK CHI HO

DCCC207/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 207 OF 2011

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to an offence of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance. You have admitted that on the 19th day of January 2011, you entered as a trespasser Room 1203, Yuk Lun House, Cho Wan Estate, No. 45 Clear Water Bay Road, Kowloon and stole therein three watches and one iPod touch. I will refer to that address as the premises.

2.  The premises was occupied by a lady named Madam Nip as her residence.  She left the residence at about 9.35 am that day and locked the door.  At about 2.30 pm that day, you requested a locksmith to open the lock of the door of the premises, claiming that you had lost the key to the door.  The locksmith then opened the door as requested by you and you entered the premises.  Fortunately, the locksmith became suspicious and reported the matter to the police.

3.  When the police officers arrived, you were no longer there.  Madam Nip then confirmed that the three watches and iPod touch were stolen from the premises.  The son of Madam Nip, Mr Ho, recognised you from the CCTV recording of the building as the person who accompanied the locksmith to the premises.  You were a friend of Mr Ho.

4.  Two days later, you were arrested by police officers.  Under caution, you admitted that you burgled the premises because you were in need of money.  You admitted that you had already sold the iPod touch, but the watches were still at your residence.  The police went back to your residence and recovered the stolen watches. 

5.  The locksmith identified you as the person requesting him to open the lock of the premises at a subsequent identification parade.

6.  Defendant, Mr Clarke, your solicitor, has made full and thorough mitigation on your behalf today, and I have taken into account all that he has had to say.  You are aged 23, single and have 12 previous convictions, of which 10 of those are for offences of dishonesty, those being the last 10 to which you were sentenced in 2004 to training centre.  In May of 2010, you received a sentence of 12 months’ imprisonment for three other offences of theft.  You were discharged from prison on 11 October 2010, that is, approximately three months before the date of commission of this offence.

7.  Mr Clarke’s mitigation is clear and straightforward, simply that you burgled these premises because you were in need of money for a living.  This was of course despite you being gainfully employed, earning $8,000 at a wholesale food market.  He recognises that the strongest mitigating factor is of course your plea of guilty and your early admission to this offence.  He has submitted that this court should take into account that there was no one in the premises at the time, it was not a night-time burglary, and no one was frightened, and all the property was recovered except for the iPod. 

8.  He further submits that there was no physical damage of the property, therefore that no loss was suffered by the householder, i.e. there was no breaking-in.  He has also informed me that he advised you that this is a domestic burglary, and the usual starting point for burglary is one of 3 years’ imprisonment after trial.

9.  Defendant, I am informed, after I had made enquiries, that you were a friend of Mr Ho, the son of Madam Nip.  You knew that they were at work and therefore you knew the premises would be empty.  Although this cannot be classified as such as one of a breach of trust, it is something which you have used to your advantage, knowing that the householder would not be present.  This was also a premeditated and planned burglary.  With that in mind, knowing nobody was there, you went and requested a locksmith to open the door of the premises, pretending to be the tenant or occupier of those premises.  Had it not been for the very astute alertness of the locksmith, you may well have got away with it although there was a CCTV recording of you in the building. 

10.  The offence, as Mr Clarke rightly says, is one usually of 3 years’ imprisonment after trial.  You have no similar convictions for burglary.  You do, however, have many previous offences for dishonesty offences.  Since 2004, you have had 10 convictions of theft.  I am informed that for three of the early thefts, they were a breach of trust from your employer; and for the remainder of the others, they were theft of mobile phones not from friends but other people.  This, in my view, is an aggravating factor.  No less than three months after you were discharged, you committed this offence of burglary.  In those circumstances, I consider a higher starting point to be appropriate.

11.  Defendant, it is very unfortunate that since the age of 15, you have been committing offences; and since 2004, I think I am probably right to say that you have spent much of your youth behind bars.  You do not seem to have learnt a lesson by the sentences that have been imposed upon you.  You are still young at age 23.  I trust and hope that this sentence will deter you to commit any further offences and that you will turn anew as you still have a lifetime ahead of you.

12.  For the present offence of burglary I take a starting point of 3 years and 3 months’ imprisonment.  I give you full credit for your plea of guilty and reduce that term to 2 years 2 months’ imprisonment.