HKSAR v. CHUNG CHING KWOK

DCCC 197/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 197 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to an offence of attempted burglary (Charge 1) and an offence of burglary (Charge 2).

2.  The particulars of Charge 1 show that the defendant, on or about 28 November 2016, attempted to enter as trespasser part of a building known as “Nippon Japanese Restaurant” (“the Restaurant”) at Ground Floor, No 31 Hang Hau Village, Tseung Kwan O, New Territories, with intent to steal therein.  The particulars of Charge 2 show that the defendant, on 3 January 2017, entered the restaurant with intent to steal.

Facts

3.  The facts to which the defendant admitted are as follows.

4.  PW2 ran a Japanese restaurant situated at the address described in Charge 1.  The front entrance of the restaurant composed of a sliding glass door and a sliding wooden door, locked by a bicycle lock at close of business.

First incident

5.  On 28 November 2016 at 1045 hours, after having secured the door of the restaurant the night before, PW2 returned to the restaurant and found that the bicycle lock was cut open, but there was no sign of ransacking.  The case was reported. 

6.  On the advice of the police, the restaurant installed a CCTV camera to capture the image at the front entrance of the restaurant.  The CCTV camera allowed remote live viewing, but had no recording function.

Second incident

7.  On 2 January 2017 at 2300 hours, PW1, son of PW2, also worked at the restaurant, secured the door of the restaurant after work.  Later, at 0100 hours on 3 January 2017, he viewed the CCTV of the restaurant at home and found that a male had entered the restaurant.  He saw the male ransacking around the cashier counter.  He then reported to the police.

8.  At 0135 hours, after observing that there was light and noise emitting from inside the restaurant, attending police officers entered the restaurant and intercepted and arrested the defendant near the cashier counter. 

9.  A number of items belonging to the defendant were seized near the cashier counter.  They were three red pliers, a crowbar, a hammer and a white mobile phone.

10.  PW2 confirmed to have suffered no loss, save to(for?) the broken bicycle lock.

11.  Under caution, the defendant admitted stealing from the restaurant because he had no money after he had lost his job.  He cut open the bicycle lock with pliers and entered the restaurant.  The burgling tools belonged to him.  He burgled the restaurant with tools.  He was intercepted before he was about to take the cash from the cashier.  He used the mobile phone for illumination.  He cut open the bicycle lock of the restaurant on 28 November 2016 but left without entering it as he heard some noise nearby.

Previous criminal conviction

12.  The defendant has one previous criminal conviction which related to an offence of inviting another to become a member of a triad society, for which he received 120 hours of community service order in November 2009.

Antecedents

13.  The antecedent statement shows that the defendant aged 31, completed Form 5 secondary school education.  Prior to the present offence, he was unemployed for months.  He was separated from his wife.

Mitigation

14.  Mr Yuen, solicitor for the defendant, supplemented more about the defendant’s background.  He submitted that the defendant worked in a restaurant from 2003 to 2015.  Owing to poor economy, he changed his job and became a scaffolding worker in 2015.  In September 2016 he worked as a casual worker. He committed the present offences because he was in financial difficulties.

15.  Three mitigating letters were submitted and read out in court.  They were written by the defendant, his father and his sister. 

16.  In his letter, the defendant said that he was very remorseful for what he had done.  He described that his father sustained injury to his retina and lost the ability to work 12 years ago.  As for his mother, she has been suffering from hearing impairment.  As he became unemployed, he committed the present offences.

17.  Both his father and his sister described the defendant as a caring and kind-hearted son or brother.

18.  Mr Yuen submitted two cases for the court’s consideration, namely, HKSAR v Zhang Jianqing, DCCC 1198/2008, and a Chinese case, HKSAR v Fong Yan Kit, 方仁杰, DCCC 55/2017.  He pointed out that the starting point for non-domestic burglary is 2 years and 6 months’ imprisonment.  Besides, he said words to the effect that, without the defendant admitting to the first offence (that is, attempted burglary), the police would not have been able to identify the offender.

Reasons for sentence

19.  In passing sentence, I take into account everything said by Mr Yuen on behalf of the defendant.  Mr Yuen said that he was instructed to invite the court to call for a background report.  The court refused to do so and Mr Yuen said that he had, in fact, obtained full instructions from the defendant and could proceed with the mitigation.

20.  Having considered all the facts of the present case, it is obvious that the present offences were not opportunistic burglaries.  They were planned, as the defendant went to the restaurant in the early hours and brought with him the burgling tools.  He attempted to burgle the restaurant in November 2016, but was unsuccessful.  In January 2017, a month later, he went back to the restaurant with burgling tools.  This time he gained entry to it and ransacked the cashier counter.

21.  The correct starting point for non-domestic burglary is 2 years and 6 months’ imprisonment, as laid down in R v Wong Man [1993] 1 HKC 80, and Attorney-General v Lui Kam Chi [1993] 1 HKC 215.  Where there is more than one offence of a similar nature committed at different times, it is right for the court to award a higher sentence than if there had been only one offence.  See Attorney-General v Lo Ching Fai [1996] 2 HKCLR 20.

Starting point

22.  In light of the sentencing principles, I adopt a starting point of 2 years and 6 months’ imprisonment for each charge.

Discount of sentence

23.  Since the defendant has pleaded guilty to the offences, he is entitled to a full one-third discount of sentence.  The sentence for each charge is reduced to 20 months’ imprisonment.

24.  For Charge 1, it is noted that the defendant made a confession to an offence of which the police were not able to identify the offender.  On this, I will further reduce the sentence by 2 months to 18 months’ imprisonment.

25.  The defendant cannot now pray in aid the hardship suffered by his family as a result of his imprisonment.  He must appreciate that his family would suffer if he is caught and convicted.

Totality principle

26.  The two offences are separate and distinct.  They were committed at the same premises, but at different times - one month apart.  The sentences should therefore be served consecutively.

27.  Having considered the totality principle, I order that 4 months of Charge 1 is to run consecutively to that of Charge 2, making a total of 24 months’ imprisonment.

28.  Accordingly, the defendant is sentenced to 24 months’ imprisonment for both charges.