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DCCC 694/2015
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 694 OF 2015
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| Before : |
H.H. Judge G. Lam |
| Present : |
Ms. Ivy LAU, counsel on fiat, for HKSAR. |
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Mr. CHAU Hing Pang instructed by M/s Tang
Tso & Lau, assigned by the Director of Legal Aid,for the defendant.
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| Offences : |
(1) to (3) Burglary（入屋犯法） |
REASONS FOR SENTENCE
The defendant pleaded guilty to 3 charges of "Burglary". He burgled 3 different residential units within the same building in the early hours on the same day.
Summary of Facts
Charge 1
2. Mr. HO (PW1) resided at Room 2, 6th Floor, Siu Hing Mansion, Nos.129-131 Yee Kuk Street, Sham Shui Po.
3. About 3:00 am on 22 April 2015, PW1 opened a window before he went to bed. A laptop computer was placed on the desk adjacent to the window.
4. About 10:00 am, PW1 received a phone call from the Police informing him that his laptop computer had been stolen and requesting him to go to the Ground Floor. He immediately went downstairs and identified his laptop computer.
Charge 2
5. Madam CHOW (PW2) resided at the Front Portion, 6th Floor.
6. About 5:00 am, PW2 woke up and saw light coming out from the storeroom in her flat. She also heard sound of ransacking coming from the storeroom. At the same time, she found a shoulder bag in the living room. She noticed that her key holder and purse were placed inside that shoulder bag. Her purse contained her HKID card, a few other cards and some cash. She also found her Samsung mobile phone missing.
7. PW2 suspected that someone was in her home stealing. She left the flat quietly and went to her neighbour's home to call the Police. She then went to the Ground Floor to wait for the Police.
Police Arrival
8. About 5:10 am, SPC 33265 (PW4) and PC 13232 arrived at the main entrance of Siu Hing Mansion, where they met PW2. As they entered the building, PW4 and PW2 saw the defendant coming down from the front staircase walking towards them. PW4 noticed the defendant holding a laptop computer in his right hand. PW4 and PC 13232 told the defendant to stop, but he turned around and fled towards upstairs. He also dropped the laptop computer on the staircase between the Ground and 1st Floors. The police officers gave chase but they lost sight of the defendant upon reaching the 3rd Floor.
9. PW2 led other police officers to her home. She found a window frame in the storeroom missing and all drawers in the storeroom opened. After checking, she found all the properties particularized in Charge 2 missing.
10. Subsequently, police officers found PW2's coin bag (without the $20), key holder (without any key), shopping bag, purse and membership card at the rear staircase.
Charge 3
11. Mr. MAK (PW3) resided in a flat on the 5th Floor.
12. About 5:00 am, PW3 was woken up by some noise and then heard a loud "bang" sound coming from the living room. He went to the living room and saw the defendant having entered his flat. The defendant asked PW3 to be quiet. He then went to kitchen and took a fruit peeler. He waived the fruit peeler in the air. PW3 asked the defendant to put down the fruit peeler in order to avoid hurting anyone. The defendant placed the fruit peeler on a table and sat on the sofa.
13. Later, the defendant said he was thirsty and went to the kitchen. He took 4 boxes of lemon tea and drank them. Afterwards, he picked up a box of cigarettes from the table, took 2 sticks and smoked them.
14. The defendant then went to take a bath in the bathroom. When he finished, he went to the kitchen, picked up a knife and placed it on his neck. PW3 asked the defendant to put down the knife, and he complied with the request. But then he picked up a pair of scissors from the table and waived them in the air. PW3 asked the defendant to surrender himself. The defendant took out his mobile phone and made a few calls. He eventually surrendered himself to the Police. The defendant had left behind PW2's mobile phone and supermarket coupons at PW3's home.
Admissions
15. About 6:20 am, PC 10335 arrested the defendant at the 5th Floor corridor. Under caution, he admitted having stolen properties from the building because he was out of money.
16. In his video recorded interview, the defendant admitted having burgled the premises particularized in Charges 1 to 3. He explained that he climbed into the homes of PWs 1 to 3 through the scaffolding of the building. He claimed that he had consumed a small of quantity of "ICE" and cannabis before committing the burglaries. He also said he acted alone.
Mitigation & Sentence
17. The defendant is 23 and single. He has 12 conviction records, which include 8 theft-related offences and several "simple possession" offences. His first conviction is dated February 2006 when he was only 13. Defence counsel Mr. CHAU informed me that the defendant is a drug addict; he committed the present offences because he was out of money.
18. In mitigation, Mr. CHAU submitted that no one was alarmed or frightened when the defendant committed Charge 1. Regarding Charge 3, Mr. CHAU submitted that the defendant did not intend to hurt anyone with any sharp objects. He had consumed drugs beforehand. He was at a loss; he was also scared and did not know what he was doing. Finally, Mr. CHAU submitted that the defendant is determined to get rid of his drug habit and to turn a new leaf after serving his sentence.
19. Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. If his drug habit was the cause of committing the present offences, the defendant has no one but himself to blame. Being a released prisoner, he must have known how to seek help.
20. The normal starting point for domestic burglary is 3 years' imprisonment. Mr. CHAU was fair and correct in acknowledging that alarming others or causing them fear in the commission of burglaries is an aggravating factor. The defendant committed 3 burglaries in the same building in the early hours on the same day is also an aggravating factor[1], needless to say he has multiple convictions of theft-related offences.
21. For Charge 1, I adopt a starting point of 3 years' imprisonment. A one-third discount is given for the guilty plea, reducing the sentence to 2 years. Apart from this, I see no other mitigating factors which warrant any further reduction. The sentence for Charge 1 is 2 years' imprisonment.
22. For Charges 2 and 3, I adopt a starting point of 39 months' imprisonment each. With the guilty plea, the sentence is reduced to 26 months. I sentence the defendant to 26 months' imprisonment each.
23. Bearing in mind the totality principle, I consider a global starting point of 4 years to be appropriate for all 3 charges. With the guilty pleas, the overall sentence becomes 32 months. Hence, I make the following order :-
(i) 3 months in Charge 2 consecutive to Charge 3; and
(ii) 3 months in Charge 1 consecutive to Charges 2 and 3.
Thus, the total prison term shall be 32 months.
[1] In HKSAR v CHENG Wai Kai CACC 338/2007, Yeung JA (as he then was) held "The starting point [for burglary of non-domestic premises] can be adjusted upwards if there are aggravating circumstances such as… (5) the offender has previous convictions, particularly previous convictions of similar nature; and (6) the offender commits multiple offences." (at para.15)
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