HKSAR v. HO KWOK KEUNG

DCCC 846/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 846 OF 2016

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Reasons for Sentence

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1.   The defendant has pleaded guilty to one burglary charge, contrary to section 11 of the Theft Ordinance, as well as one theft charge, contrary to section 9 of the same ordinance.

2.   The facts of this case are straightforward.  The burglary took place on 17 January this year.  The owner of a medicine shop in Wong Tai Sin Plaza Market locked up at about 6.15 that evening.  When he returned the next morning at about 9.30, he opened his shop to find it had been ransacked.

3.   He had cash of $3,000 stolen, as well as items such as bird’s nest, ginseng, fish maw, dried scallop and deer horn.  The value of all the items stolen was approximately $30,000.

4.   A fingerprint was lifted from a jar in the shop which was subsequently confirmed to be the defendant’s.

5.   The defendant was arrested some months later, on 24 June 2016.  Before that arrest, some 10 days earlier, the defendant stole a lobster from a fish tank outside a restaurant on Ngan Fung Street, Wong Tai Sin.  He put his hand in the tank, grabbed the lobster, and ran away with it.  This lobster was valued at about $1,500.  At a later stage, the defendant told the police that he was hungry, and took it.

6.   Under caution, he admitted both the burglary and the theft.  He said he climbed into the medicine shop and stole those items, which he sold for about $2,000, and as for the lobster, he cooked it and ate it.

7.   I have been told in mitigation the defendant is 53 years old, divorced, and lives with his elderly mother and sister.  His mother is not in great health, and he does spend time taking care of her.  I have been told that the defendant was working, earning about $6,000 a month, until his arrest.  By way of explanation, he committed these offences out of greed, financial difficulty and hunger, where the lobster was concerned.

8.   The defendant is not a man with a clear record.  He has 23 previous convictions obtained in 20 court appearances.  The majority involve offences of dishonesty.  In fact, the last four convictions are theft charges, and were dealt with in the magistracy.  Terms of imprisonment were imposed ranging from 2 weeks to 4 months.

9.   The defendant has been in and out of prison for years.  He is a recidivist.

10.   The defendant’s best mitigation is his plea of guilty today.

11.   Defendant, please stand up.  I take into account mitigation put forward, the defendant’s background, plea, the facts of the case, as well as the value of the items stolen.  Normally a burglary of a non-domestic premises such as this would attract a 2½‑year starting point if there are no aggravating or mitigating factors.  Here there are none of those factors that exist.

12.   Therefore, for Charge 1, I will take a starting point of 2 years and 6 months.

13.   For Charge 2, taking into account the facts and the value of the lobster stolen, I take a starting point of 9 months’ imprisonment.

14.   The defendant has pleaded guilty, and is entitled to a discount of one-third.

15.   After that discount is applied, for Charge 1, the defendant is sentenced to 1 year and 8 months’ imprisonment; Charge 2, 6 months’ imprisonment.

16.   I do take into account the totality principle.  I order that 2 months of the 6 months of Charge 2 be served consecutively to Charge 1, and the balance concurrently.

17.   Therefore, the defendant is sentenced to a total of 2 years’ imprisonment.  Do you understand that sentence?

DEFENDANT: Yes.

18.   Apologies, Defendant.  You are not sentenced to 2 years’ imprisonment.  You are sentenced to 1 year and 10 months’ imprisonment.  I apologise for my mistake.  You understand that?

DEFENDANT: (Answer in English) Thank you. Thank you. (Interpreted) Yes.