HKSAR v. TAM CHUN LEUNG

DCCC 24 & 292/2020 (Consolidated)

[2020] HKDC 915

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 24 & 292 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant is convicted on his own plea and agreement to amended consolidated summary of facts to two charges of burglary.

Facts

Charge 1

2.  At around 6:30 am on 21 October 2019, whilst PW1 looked outside the window and noticed the defendant appearing at the balcony of the 1st Floor of the opposite building at 184 Fuk Wing Street, Cheung Sha Wan, Kowloon, Hong Kong.  He kept the defendant under observation and used his mobile phone to film the acts of the defendant.  He then saw the defendant looking around at the balcony and later succeeded in entering the premises on the 1st Floor (Flat 1) of the building by using an object, prising open the window of the premises.

3.  The case was reported.  PW1 then looked over to Flat 1 again and noticed the window of Flat 1 opened.  He then went to the rear alley of 184 Fuk Wing Street and waited for police.

4.  Later, police arrived and he relayed the incident to the police.  At around 7 am, police saw the defendant carrying a backpack and a paper box walking down the stairs of the building.  He was later intercepted.  Upon questioning, the defendant said he did not reside at the building.

5.  He was later arrested for burglary.

6.  The staff of the tenant of Flat 1 later confirmed that, in fact, Flat 1 had been vacated since March 2019 and that nothing was missing from Flat 1.  Cost of repair of the window is about $500.

Charge 2

7.  On 6 September 2019, PW3’s son checked on a flat situated on the 2nd Floor of No 27C Hing Wah Street, Cheung Sha Wan, Kowloon, Hong Kong (“Flat 2”), ensured the windows and door of Flat 2 locked before leaving.

8.  At around 2:30 pm on 16 September 2019, PW3 and his wife returned to Flat 2 and found the door was locked from inside with door chain.  Upon entry, he found that the window in the living room had been prised open.  There were signs of ransacking inside the Flat 2.  Case was reported.

9.  PW3 confirmed the following items missing from Flat 2: three calligraphy paintings, valued at HK30,000; two bracelets, valued at HK3,000; two pairs of earrings, valued at HK10,000; one pocket watch valued at $500; two chains valued at HK4,000; about five bowls, valued at HK7,5000; and two ornaments, valued at HK100.

10.  Total value of stolen property is around $55,100 and the cost of repairing the window is about $400.

11.  Palm prints were lifted within the Flat 2 and they belonged to the defendant.

12.  On 11 December 2019, the defendant was arrested for burglary at Lai Chi Kok Reception Centre.

13.  At all material times, the defendant entered Flat 1 and Flat 2 as a trespasser. 

14.  In the case of 1st charge, he entered with an intent to steal and, for the 2nd charge, he had actually stolen things from inside.

Criminal record

15.  The defendant has 12 previous conviction records since year 2005, relating to 16 charges of which 7 related to dishonesty, with one similar conviction on 1 March 2018, for which he was sentenced to 20 months’ imprisonment.

Mitigation

16.  The defendant is now aged 45.  He was born in China and he was educated up to Primary 3 level.  He went to Hong Kong in his 20s and joined his father.  Later he got married with two daughters aged 7 and 14 and they were born within wedlock with his former wife. 

17.  It was said that the defendant had all along been suffering from mental illness since 15 years ago and had been continuously receiving psychiatric treatment.

18.  His wife later divorced him in 2018 and the defendant had to leave the public housing estate where he used to reside.  He is also discriminated as a result of his mental problem and he has been unable to find a job because of the mental problem and has become a scavenger.

19.  It was said by defence counsel that, before the defendant committed the present offences, he had been homeless for a while.  In order to find a shelter to take a rest, he entered these two premises, subject matter of the charges, for resting.  For the 1st charge, the defendant did not take anything from the premises and, for the 2nd charge, he took certain items. 

20.  It was said that the defendant faced with tremendous difficulty in supporting his own life whilst he committed the offences and that the primary purpose of the defendant entering the premises was to take a short nap and it was only after that he realised there were valuable properties that he impulsively took some items from the premises.  He had never intended to cause any harm to any person or do any damage to the property.  On both occasions the defendant entered the premises, he did not cause harm to any one nor do any damage to the property.

21.  Defence counsel submitted that the defendant is now deeply remorseful for what he had done.  He well understands the seriousness of the offences and is willing to take up the responsibility.  He has pleaded guilty at the first available opportunity and tenders his most sincere apology to the owners of the premises for the loss suffered.

22.  In the mitigation letter written by the defendant, defendant says he is determined to amend his ways and not to reoffend.  He also says that he would in due course seek assistance from the Social Welfare Department and apply for Comprehensive Social Security Assistance and public housing.  He invites the court to impose on him a lenient sentence so that he has a chance to start afresh.

23.  Defence counsel urges the court to consider the totality principle in imposing the most lenient sentence on the defendant.  He also has previously invited this court to adjourn the case and ask for a psychiatric report before sentencing the defendant.  This request was later withdrawn.

Discussion

24.  Firstly, this court would point out that the court does not accept that the primary purpose of the defendant’s entering the two premises are for taking a short nap. 

25.  This court has also fully considered the mitigation submission by defence counsel, the authorities cited and the mitigation letters from the defendant before sentencing.

26.  Although the defence counsel did earlier in written submission ask this court to consider calling a psychiatric report.  Upon clarification, he confirms he only wished to point out that as the defendant is suffering from mental illness, it is difficult for him to find a job and the fact that he suffers from psychiatric illness does not affect his mental ability committing of the crimes in question.

27.  The defendant is a drug addict and his first dangerous drug conviction dated back to year 2005 and later in year 2013 and 2016.  This might explain why he committed the present offences.

28.  In fact, his letter in mitigation was well written fluently and coherent.

29.  Any person who commits burglary shall be guilty of an offence, shall be liable on conviction upon indictment to an imprisonment for 14 years. 

30.  In this case, the premises of both charges are residential premises. 

31.  The Court of Appeal in The Queen v Chan Yui Man, CACC 36/1988, laid down sentencing guideline for burglary of domestic premises.  It was held that 3 years’ imprisonment was a proper starting point for a first offender of full age in domestic burglary.  It is also subject to adjustment upon any aggravating or mitigating factor.

32.  In this case, the defendant acted alone.  There is the use of simple tools in prising open the window of the premises.  There was no violence in this case nor was there any confrontation.  Both premises were not at the time occupied and the mode of burglary was not sophisticated nor was there the use of machinery.

33.  It is noted, however, that the criminal record of the defendant involved six thefts and one burglary, the last one being in March 2018, for which he was sentenced to 20 months’ imprisonment and he committed the first offence within few months of his release from prison.

34.  The defendant no doubt is a persistent offender, for which the sentencing starting point is enhanced by 3 months to 3 years and 3 months.

35.  For the 1st charge, however, the premises has been left vacant for seven months before the offence.  For this reason, whether the premises is one of residential or non-residential really did not matter. The sentencing starting point is therefore reduced by 6 months to 2 years and 9 months’ imprisonment.

36.  There is no doubt that no valuable would be stored inside and actually no property was stolen except for the owner of the premises suffered $500 damage as a result of the repair cost to the window. This is another mitigating factor for which the court is willing to further reduce the sentencing starting point by 7 months to 2 years and 2 months’ imprisonment.

37.  This court finds the most valid mitigating factor is his guilty plea, for which he is entitled to full one-third sentencing discount.  He is therefore sentenced to 1 year 5 months and 10 days’ imprisonment for the 1st charge.

38.  For the 2nd charge, the premises is an occupied residential premises.  Sentencing starting point of 3 years’ imprisonment is appropriate. 

39.  Again, because the defendant is a persistent offender, the sentencing starting point is enhanced by 3 months to 3 years and 3 months’ imprisonment. 

40.  Property stolen was $55,100 and the cost of repair was $400. 

41.  Considering the mitigation submission, the most valid mitigating factor is his guilty plea, for which he is entitled to full one-third sentencing discount.  He is therefore sentenced to 2 years and 2 months’ imprisonment for this charge.

42.  The two offences were committed roughly within two months’ period.  Although they are of the same nature, they involve different premises and different victims.  They are separate and distinct offences and the sentence should be consecutive. 

43.  This court however considers the totality principle and the totality culpability of the defendant in these cases and finds that the total sentence just and proportionate to his culpability in this case is a sentence of 2 years and 8 months’ imprisonment.

44.  Accordingly, 6 months of the sentence in the 1st charge is to run consecutive to the sentence in the 2nd charge, and the rest of the sentence of the 1st charge is to run concurrent to the sentence in the 2nd charge.

45.  The defendant is sentenced to a total of 2 years and 8 months’ imprisonment.