HKSAR v. CHENG MAN CHUNG

DCCC823/2000 & 1280/2010
(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 823 OF 2000 AND 1280 OF 2010
(Consolidated)

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to two offences of burglary, each contrary to sections 11(1)(b) and (4) of the Theft Ordinance, Cap.210; to one offence of attempted burglary, contrary to section 11(1)(a) and (4) of the same ordinance; and to one offence of failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap.221. You admitted the brief facts and I convicted you.

2.  Those facts are as follows.  PWs 3 and 4 were watchmen at Fortune Well Height, Nos. 152-154 Boundary Street, Kowloon City.

3.  At around 3.10 pm on 3 July 2000, they were on duty in the management office.  You rang the doorbell and PW3 allowed you to enter the lift lobby.  You told them that you were visiting a friend at Flat A on the 11th floor.  At the time you were carrying a travel bag.  You wrote in the visitor’s book Lam Tse-kwong, ID number CXXXXXX(X).  You were then allowed to go up.  You went to the 5th floor of that building.  You prised the metal gate of Flat A on the 5th floor open and attempted to burgle Flat A.  You also prised the metal gate and main door of Flat B with a crowbar and burgled Flat B.  The occupant of that flat was not there at the time.

4.  You stole the following items from Flat B:  $23,000 Taiwan; a gold pen worth about $1,000; a gold ring inlaid with jade and diamond worth about HK$12,000; and a gold tie clip inlaid with jade and diamond worth about HK$12,000.

5.  About 30 minutes later, at 3.40 pm, PW3 and 4 saw you leave carrying the travel bag.

6.  At around 4.15 pm, PW2, a domestic helper, returned to Flat A on the 5th floor and found the metal gate had been prised.  She entered the flat and alerted PW1, who at that time was asleep in her bedroom.  PW1 reported the burglary, or attempted burglary to PW3 and 4. 

7.  PW3 went to the 5th floor to check and found the metal gate and door of Flat B to have been prised and the flat ransacked.  He returned to the management office intending to call the police.

8.  He saw you re-entering the building.  You claimed to have lost your wallet and wanted to go back up and look for it.  PW3 asked you to produce your ID card but you refused.  In your presence, PW3 related the burglaries to PW4 and you fled. PW3 pursued you.

9.  PWs 5 and 6, police officers on motorcycle patrol, joined the chase and caught you on Prince Edward Road.  They brought you back to the building.  After inquiries, PW5 arrested and searched you.  They located your car outside No. 4 Earl Street, which is near the building.  A search revealed a travel bag containing two crowbars, a spanner, $500 Taiwanese currency, a screwdriver, a pair of gloves, a gold ring and a gold tie clip.  Under caution, you admitted the burglaries and said you were unemployed.  You were then taken to the police station.

10.  Forensic examination revealed the crowbar had been used to prise the door. 

11.  PW1 confirmed nothing had been stolen from Flat A.

Charge 3

12.  Put succinctly, you failed to answer your bail for trial at this court, the District Court, on 11 October 2000.  You surrendered to Yuen Long Police Station on 27 September 2010 and admitted that you knew you were a wanted person.

Charge 4

13.  PW19 lived at the 15th Floor, Rich Court, 213-217 Queen’s Road West, Western District.  At 7.30 am on 20 May last he left the premises secured.  He returned at 11.30 pm to find the wooden door open, prise marks on the iron gate and signs of ransacking.  The police were called.

14.  He confirmed that property worth approximately $73,440 was missing.

15.  The missing property comprised cash of HK$15,000; US$1,000; $30,000 Taiwanese; 10,000 Thai baht; three gold chains; three gold rings, and a Nokia mobile phone.

16.  As we know, you were arrested on 27 September when you surrendered to Yuen Long Police Station.

17.  PW18 arrested and cautioned you for burglary and you admitted the offence.  With your assistance, the mobile phone was recovered from your home.

18.  On 19 October last, PW20 took an interview under caution from you.  Inter alia, you said the following:  you committed the burglary alone; you followed a resident into the building and prised the door with a crowbar; you stole cash of $30,000, gold rings, gold chains and the phone; you sold the gold items at $40,000 to a jewellers; all the cash that you had stolen and obtained from the sale had been spent; you threw away the crowbar.

19.  You admitted to 15 previous convictions on eight separate occasions, 13 of which involved crimes of dishonesty.

20.  The prosecution produced for my guidance the case of HKSAR v Chow Tak Fuk, CACC428/2004.  To put it briefly,  this is authority to say that where the plea is a delayed plea, then the court has the right to reduce the normal one-third discount for a plea of guilty.

21.  On your behalf Mr Si entered mitigation.  He told me you are 44 years of age, unemployed, single, and educated only to primary level.  Your parents are deceased, and though you have many siblings, you have no contact with them.  In the past you have worked as a delivery worker and on construction sites.  An industrial accident has left you with permanent damage to your spine and unable to perform heavy manual tasks.  This of course limits the type of work you can undertake.

22.  I am told that at the time that you absconded you were addicted to cannabis and forgot to come. Thereafter, you fled to the Mainland and returned to Hong Kong in mid‑2009.

23.  You committed the fourth offence after your return in order to repay a debt to someone from whom you had borrowed money.

24.  Mr Si stressed that you had voluntarily surrendered yourself to the police and admitted to the fourth offence.  It is implicit that had you not made those admissions, the fourth offence would probably remain unsolved.

25.  He said that it is your intention to accept your punishment and thereafter, on release, to go straight.

26.  In deciding whether or not I should withhold some of the normal discount, Mr Si returned again to the theme of the voluntary nature of your surrender and the assistance you had rendered the authorities.

27.  I turn now to the sentence.

28.  Defendant, you are a man with a poor record, a history of crimes of dishonesty.  You are a man who absconded and then returned to Hong Kong, where again you burgled premises. 

29.  The offences with which I am dealing today are two burglaries, one attempted burglary and, of course, the absconding. 

30.  In your favour, I note that you voluntarily surrendered yourself to the police and made full and frank admissions as to the commission of the fourth offence.  I am prepared to accept that it is unlikely that that offence would have been solved if you had not made that admission.  Those events in themselves are supportive of the notion that you are making an effort to go straight and I am therefore resolved to encourage you in that by not withholding any of the discount.  You will have the full discount.

31.  Nevertheless, it has to be faced that these are a serious series of offences.  Burglary of a dwelling place is a very serious offence indeed.  The usual starting point is one of 3 years.

32.  The following sentences will be imposed:

Charge 1, I take a starting point of 3 years’ imprisonment, reduced to 2 years for your plea of guilty;

Charge 2, 3 years’ imprisonment, reduced to 2 years for your plea of guilty;

Charge 3, this was a deliberate absconding. I take a starting point of 3 months’ imprisonment, reduced to 2 months; and

Charge 4, I take a starting point of 3 years’ imprisonment, reduced to 2 years.

33.  I now apply the principle of totality. 

34.  The 2 years on Charges 1 and 2 will be served concurrently; the 2 months on Charge 3 will be consecutive; and the 2 years on Charge 4 will be served one year concurrent and one year consecutive to those sentences.

35.  Unless I err in my mathematics, that gives a total sentence of 3 years and 2 months.