HKSAR v. HAU WING SUM

 DCCC1327/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1327 OF 2009

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Reasons for Sentence

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1.  The defendant faces 5 charges of "Burglary". He pleaded guilty to Charges 1, 3 and 5. The Prosecution applied to leave Charges 2 and 4 in the court file. I granted the application.

2.  The modus operandi in all 3 charges are almost identical. During lunch time on the dates and at the places specified in Charges 1, 3 and 5, the defendant entered into a commercial building, went up to a particular floor as a trespasser, took away boxes of toner cartridge from the victim company and then left. His entry into the respective commercial buildings and departure therefrom carrying with him the stolen toner cartridges have been captured by the CCTV recordings at each building.

3.  In Charge 5, the defendant was observed by DPC 33862 when he entered the building. DPC 33862 then intercepted him when he left the building with the stolen toner cartridges. Under caution, the defendant said "Ah Sir, caught red-handed. I have nothing to say."

4.  For the 3 charges, the defendant has stolen a total of 37 boxes of toner cartridge.

5.  The defendant is now 40. He has 3 previous conviction records, all of which are related to "Theft" and "Burglary". His last conviction in 2007 involves a total of 3 charges of "Burglary". The defendant lives with his girlfriend and they have a 4-year-old child, who is born with "G6PD deficiency" (fortunately has had no outbreak so far). The defendant's girlfriend has been suffering from depression since her pregnancy and is still receiving psychiatric treatment. In June 2009, she was diagnosed having a small uterine fibroid.

6.  Defence counsel Miss CHEUNG submitted that the defendant quitted his previous restaurant job to look after his girlfriend. He was under much emotional and financial pressure. A letter written by a Mr. WONG, the defendant's former employer, has been placed before me. Mr. WONG was pleased with the defendant's performance as a restaurant manager, and has expressed his willingness to re-employ the defendant upon completion of his sentence in the present case. Miss CHEUNG stressed that the defendant did not use any tools or equipment to break into the premises; he simply dressed like a messenger to sneak into the companies.

7.  It is clear that the defendant saw the loophole in the security of the victim companies and took advantage of it. Charges 1 and 3 were only 7 days apart and Charge 5 took place about 2 months after Charge 3. The defendant obviously had a plan to steal from these companies thinking that he would not get caught so easily and that no one would notice such trivial (but highly resalable) office items missing.

8.  The normal starting point for non-domestic burglary is 2.5 years imprisonment. However, the defendant's previous records render him a "repeated offender", which is an aggravating factor in terms of sentencing. According to his antecedent statement, the defendant was released from prison in September 2008 (after serving his sentences for 3 charges of "Burglary"). In less than a year, he re-offended. In my view, the sentences in the present case must carry a deterring element. In other words, a higher than normal starting point is required.

9.  Based on the nature and value of the stolen items, the mode of stealing and the defendant being a repeated offender, I consider 3 years imprisonment to be the appropriate starting point for each charge. One-third discount is given for his guilty plea, reducing the sentence to 2 years. Apart from this, I see no other mitigating factors which warrant any further reduction. The sentence I pass for each charge is therefore 2 years imprisonment. Having considered the totality principle, I order the sentences for Charges 1 and 3 to run concurrently; 6 months in Charge 5 to run consecutive to Charges 1 and 3. In other words, the total prison term for all 3 charges is 2 years and 6 months.