HKSAR v. CHIM TSZ CHIU

DCCC1168 & 1315/2011 (CONS)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS. 1168 & 1315 OF 2011 (CONS)

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Reasons for Sentence

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1.  The defendant enters a plea of guilty to two charges of burglary, brought against him under section 11(1)(b) and (4) of the Theft Ordinance, Cap.210.

Facts

2.  The facts to which the defendant agrees are as follows.

Charge 1

3.  On the afternoon of 15 July 2011, Mr So returned to his residence at Room 3314, Kwong Ngar House, Kwong Tin Estate, Kwun Tong.  At the entrance, he found the iron gate shut, but the wooden door ajar. 

4.  He opened the gate and was in the process of pushing open the wooden door when he saw the defendant inside his flat.  The defendant was carrying an 18-inch long crowbar with sharp ends, which he raised as if to strike Mr So.  Alarmed, Mr So fled, and the defendant made good his escape.

5.  Mr So later checked his belongings and confirmed nothing had been stolen.  His wooden door was damaged however, which costs about $1,500 to repair.  

6.  The police arrested the defendant on 1 August 2011.  The defendant was released on court bail on 3 August 2011.  The following day, Mr So made positive identification of him at a formal identification parade.

Charge 2

7.  Mr Lam lives in Room 514, Hung Sing House, Hung Hom Estate, Hung Hom. 

8.  On the afternoon of 18 October 2011, Mr Lam went home to find his iron gate locked from the inside.  Thinking that his family members might have done it, Mr Lam pressed the door bell and put his hand through the gate to push open the wooden door.  As he did so, he saw two strangers inside his flat, one of whom was the defendant. 

9.  When they realised that an occupant of the flat had returned, the defendant and his confederate rushed out and fled via the staircase.  Mr Lam saw them run upstairs and called the police.

10.  A team of police officers arrived shortly at the lift lobby of the building, only to find the defendant coming out of a lift.  Mr Lam pointed out to the police that the defendant was one of the two strangers who had entered his flat. 

11.  The police arrested the defendant and found in his possession cash in the sum of $9,830.  Upon checking his premises, Mr Lam found $9,800 cash had gone missing. 

Conviction

12.  The court finds the defendant guilty as charged. 

13.  The defendant has had six criminal records prior to his current conviction, one of which relates to 10 counts of burglary for which he was sentenced to two years’ imprisonment.  

Mitigation

14.  In mitigation, the defence puts forward the following matters for the court’s consideration. 

15.  The defendant is 27 years old.  He enters a plea of guilty to express remorse, saving valuable court time. 

16.  Born in Hong Kong, the defendant has received up to Form Two education.  Between August 2010 and August 2011, the defendant has worked as a mechanical technician, making $9,000 a month.  

17.  He lives with his mother, who suffers from a heart condition.  In August 2011, the defendant lost his job and was unable to support the family, of which he had been the sole bread-winner, and thus the commission of the two offences.       

18.  Counsel for the defence submits that the defendant has obtained nothing, and thus the victim has suffered little loss, in Charge 1.  In relation to Charge 2, it is submitted that the defendant used the crowbar solely for the purpose of gaining entry to the premises, and it so happened the victim returned home and stood in the doorway, barring the defendant’s only route of escape, that the defendant raised the crowbar to scare the victim away.

19.  Counsel urges the court to be as lenient as possible in sentencing the defendant and asks for a partly concurrent term of sentence. 

Discussion

20.  Burglary involves breaking into private property with intention to steal.  There is clear public interest in protecting private dwellings from unauthorised invasion.  Once burgled, even when extra anti-theft devices are installed, there will always be a lingering doubt that the home is no longer safe. 

21.  When a dwelling place is burgled, there is always a chance of occupants being inside, who may take action to protect their belongings, leading to severe consequences.       

22.  In view of these factors, the Court of Appeal has laid down a sentence guideline of three years’ imprisonment in cases where domestic premises are burgled (HKSAR v Lau Pang [2004] 3 HKLRD 565).

23.  There is a serious aggravating factor in the way in which the defendant committed the offence of burglary in Charge 1.  He armed himself with a crowbar and scared Mr So with it to make good his escape.  Fortunately Mr So did not overreact or attempt to disarm him.   

24.  The court is unable to accept the submission that the defendant should not be visited with a more severe sentence than usual in connection with his use of the crowbar, at the spur of the moment as it might have been, to scare the victim away.  In the court’s view, the defendant has only himself to blame entering the victim’s premises as a trespasser in the first place.     

25.  In the context of a charge of burglary, in the court’s view - and this is confirmed by the case of Alex Edward Brewster and others [1998] 1 Cr App R (S) 181, referred to by the prosecution - the fact that an offender was armed at any stage of the occurrence of the offence and has caused the occupant a significant degree of alarm is an aggravating feature, so grave that it should warrant an increase of the starting point.  The overall starting point for Charge 1 should be one of three years and nine months’ imprisonment. 

26.  Present in the circumstances of the commission of the offence in Charge 2 are the following aggravating features:

(i) the defendant committed the offence while on court bail, and

(ii) he committed the offence with an accomplice.

A starting point of three and a half years’ imprisonment is called for.

27.  In all the circumstances, a global starting point of five years’ imprisonment would be appropriate to address the gravity of the defendant’s crime in the two charges.  

28.  The defendant is a repeat offender.  Apart from his guilty plea, nothing in the defendant’s personal and family background would justify any further reduction in sentence.

Conclusion

29.  In the result, the court would adopt a starting point of three years and nine months for Charge 1, which is reduced by one-third on account of the defendant’s guilty plea to one of 30 months’ imprisonment.  A starting point of three and a half years is adopted for Charge 2 which is likewise reduced by one-third to 28 months’ imprisonment.

30.  Having considered the principle of totality, the court orders that 10 months of the sentence in Charge 2 should run consecutively to the 30 months’ sentence in Charge 1, resulting in a final sentence of three years and four months’ imprisonment.

Order

31.  For the two offences of which he stands convicted, the defendant is sentenced to a term of imprisonment of three years and four months.