HKSAR v. OR WAI HUNG

 DCCC1273/2009

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1273 OF 2009

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one charge of burglary and the charge states that he entered a building which was a commercial building in Kwai Chung, New Territories, and stole from one of the offices cash in Hong Kong currency of $10,840 and 140 Renminbi.

2.  The fact which has been admitted discloses that in the evening of 16 September, the personnel in the victim office had locked the windows and door before leaving. The caretaker or the security guard working at the building saw a male walking in the corridor with a rucksack on his back. In the small hours of 17 September, the security guard discovered that a number of premises in the building were suspected to have been burgled. A report was made to the police.

3.  Upon arrival at the building, a policeman saw the defendant walking out of the building and acting furtively. He was intercepted. And the defendant claimed that he had just been to the 8th floor of the building to look for a job from a Mr Ho and claimed that he arrived at the building at around 8 to 9 pm.

4.  Upon a search of the defendant, the police found a large amount of cash, which is the subject matter of the charge inside the defendant’s rucksack, including amongst the cash were actually 21 red packets containing cash. Also found on the defendant were two torches, one CCTV camera with a receiver and a monitor, some batteries and one packet of Marlboro cigarettes inside the defendant’s rucksack.

5.  The defendant remained silent under caution. The security guard of the building approached the police at that time and positively identified the defendant as the male he had seen earlier on on the 10th floor corridor.

6.  The victim in the charge who worked in the subject office found that the padlock of the roller shutter to the office was missing and there was a hole in the lock. The premises had been ransacked and some cash and red packets which she had prepared were missing from her drawer. She subsequently identified the cash and the red packets found in the defendant’s rucksack. She was able to recognize the red packets which she had prepared and the cash because they were packed together with notes written by her.

7.  The defendant is aged 40 and has a poor record. He has 24 previous convictions; almost half of it was for burglary. His last conviction was for assault occasioning actual bodily harm in 2002 when he was given 4 months’ imprisonment.

8.  In mitigation, the defendant’s counsel, Miss Cheung, had submitted that the defendant is an electrician technician and also a part-time driver earning about $8,000 a month. He cohabits with his girlfriend.

9.  The defendant claimed that the reason for his committing this offence this time was because his mother had a fall and then he discovered that she had cataract, and that she had to have an operation. The government could only give her a time 2 years later for the operation, so in order to goto a private hospital, he needed money and that is the reason for committing this offence.

10.  I asked for medical documentation in support of this claim and I discovered that in fact his mother had been diagnosed with cataract in 2005, and I am told that she already has had the operation. The letter which was submitted to me by Miss Cheung from the United Christian Hospital dated 2005 was that his mother was waiting for an operation of her cataract in 2009. So it gives rather a sad reflection of the defendant’s reason because it gives the lie to his committing this offence because of his mother.

11.  The defendant’s boss, Mr Chu of Hang Fung Engineering, wrote a letter pleading for leniency. He says that the defendant is a serious and responsible and hardworking person, a filial son and he will continue to employ him, and the cohabitee says that she also considers the defendant to be hardworking and has no vice.

12.  Whatever the reason for the crime, nevertheless, it is a very serious offence. The defendant broke into an office and very easily stole cash which the victim had prepared, and it was very fortuitous that the security guard actually saw what happened and told the police and the police arrived just in time.

13.  As was correctly pointed out by Miss Cheung, the sentencing guideline is that for a burglary of commercial premises, the starting point is recommended that it be 2½ years’ imprisonment. Because of his plea, the defendant is entitled to one-third off. So the sentence is reduced to 20 months.

14.  I did consider the record of the defendant is a very poor one and that the starting point could be increased because of that. But in this case I will not do so, in view of the fact that he was not found with house-breaking implements on him and his last conviction was for assault in 2002, so I will adopt the recommendation starting point of 2½ years’ and so the defendant is sentenced to 20 months.