HKSAR v. NG NGAI SHAN

DCCC 523 and 133/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 523 AND 133 OF 2017

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REASONS FOR SENTENCE

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The Charges

1.  The defendant pleaded guilty to two charges of burglary, namely: -

(a) DCCC 523/2017 - he burgled the Noble Place Centre which was located in Kowloon Tong on 16 August 2016. He stole cash $2,500 and two cameras.

(b) DCCC 133/2017 - he burgled a kindergarten in Wong Tai Sin on 29 November 2016. He stole one camera with a memory card ($1,900) and one box of biscuits ($10).

Summary of Facts DCCC 133/2017

2.  On 29 November 2016, when one of the teachers returned to the kindergarten, she found that:-

(a) The nylon net used to cover the closed-off area of the playground had a hole.

(b) The window of the room had been prized open.

(c) That room was in disarray.

(d) Camera and biscuits were missing from that room.

3.  CCTV showed the defendant wandering around inside the premises of the kindergarten between 1.39 to 2.43 am.

4.  On 30 November 2017, PC 3119 came across the defendant and intercepted him.  Under caution, he admitted burgled the kindergarten.

5.  The camera with the memory card were recovered during the house search.

Summary of Facts of DCCC 523/2017

6.  The defendant stole two cameras and $2,500 cash from the Education Centre. The person in charge of the Centre found the place had been ransacked.  Windows of the room had been prized open.

7.  The defendant was arrested on 22 May 2017.  Under caution, the defendant admitted that he stole the cash and two cameras.  He had spent all the money and sold the camera in Sham Shui Po.

Previous conviction

8.  Between 1994 to 2016, the defendant had six previous convictions: robbery in 1994, criminal damage and unlawful sexual intercourse in 1996, burglary in 2008 and 2014.  Last conviction of theft was in December 2016 of which he was sentenced to 8 months’ imprisonment.

Mitigation

9.  The defendant is now 39, lives with his parents in public housing estate.  He worked as a transportation worker for a couple of months in 2016 but was unemployed for most of the time.  He received CSSA $1,800 per month.

10.  He is now a Catholic.  He claimed that he was a drug addict.

11.  In his mitigating letter, he says that he is now remorseful.  He asks for a lenient sentence so that he can be released earlier to look after his old aged parents. 

Sentence

12.  The burgled premises in both charges are non-domestic premises, and the usual sentence is one of 2 and a half years after trial.

13.  Although the defendant had two previous convictions of burglary in 2008 and 2014, I do not agree with the defence that he is a repeated offender.

14.  I was shocked by the defence mitigation that the defendant committed those burglary offences in 2008 and 2014 without intention.

15.  In 2008, the defendant pleaded guilty to two charges of burglary and appealed against his sentence in CACC 197/2008.  He never said anything of this sort in the grounds of appeal.  He served a sentence of 3 years and 3 months.

16.  As to the burglary charge in 2014, again there was no such “non-intentional” factor advanced on his behalf in mitigation, and the sentence was one of 18 months.

17.  Although the defendant claimed that he was a drug addict, I do not call for a DATC report as the sentence for two burglary charges will be a substantial one.  DATC order is clearly an inappropriate sentence, bearing in mind that the court is particularly concerned with passing deterrent sentences and achieving consistency by reference to the sentencing guidelines.  In any event, the defence did not ask for a DATC report.

18.  Time and time again, there are many authorities to say that financial hardship, such as long term of unemployment and without income, is not a mitigating factor.

19.  The defendant has old-age parents.  He should put his family first before he embarked on any criminal activities. 

20.  Today, I am also told that the defendant is willing to compensate the teacher for $10 for a box of biscuits he has stolen.  The prosecution does not seek an order of compensation.  Therefore, it has no bearing when I pass sentence on the defendant.  However, I accept that the stolen properties in DCCC 133/2017 were recovered, but the stolen properties in DCCC 523/2017 were either sold or spent.

21.  To this end, I do not see any mitigating factor to depart from the usual starting point.  I adopt a starting point of 2 and a half years and reduced to 20 months for each case because of his guilty plea.

22.  Finally, I disagree with the defence that both sentences should be run concurrently.

23.  The defendant in his previous appeal CACC 197/2008, the court ordered part of the sentence in the third burglary charge to run consecutively to the first burglary charge, remainder to run concurrently.

24.  The order: -

DCCC 523/2017 - 20 months;

DCCC 133/2017 - 20 months, 12 months to run consecutively to DCCC 523/2017.

25.  It arrives at a total of 32 months.