HKSAR v. LAW TUNG HOI

DCCC 568/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.568 OF 2013

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Reasons for Sentence

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1. The defendant pleaded guilty to one charge of burglary, contrary to s.11(1)(b) and (4) of the Theft Ordinance, Cap.210. The domestic premises involved is at Room 3, 1^st floor, 8 Tung On Street, Yau Ma Tei, Kowloon.

Summary of facts

2. Owner of the premises in question PW1 Ms. Woo locked the door of her home at about 8:30am on 1^st May 2013 and left for breakfast together with her friend Mr. Li, her younger son and her daughter. Her eldest son Eric returned home alone at about 9:20am, locked the door and went straight to bed.

3. At about 9:45am, Ms. Woo returned home with Mr. Li and saw 2 sets of cooking pots and 1 wok lid on the floor just outside her home, with the door of the premises left open. They then saw the defendant going through some drawers inside the premises. Mr. Li asked the defendant what he was doing and he answered that he was there to help them tidy up their residence. Mr. Li then told Ms. Woo to call the Police.

4. Police officer SPC51403 arrived and found on the defendant the following items. One commemorative coin, one wok lid, two sets of cooking pots, $29 cash and some documents in the name of Ms. Woo. These items were all identified by Ms. Woo as belonging to her and were originally placed inside her home.

5. The defendant was arrested. Under caution, he said he entered the premises to see what there was to steal as he saw that there was no one inside.

Previous convictions

6. The defendant has a total of 37 convictions, with 16 related to dishonesty of which 2 are similar to the present offence. He was last convicted on 2^nd July 2013 for one charge of theft and was sentenced to 2 months’ imprisonment. His 2 burglary convictions date back to 2001 and 2007.

Mitigation

7. The defendant is 54 years old, single. His girlfriend had agreed to marry him when he completes his jail sentence. The defendant lives on $3,500 of social security benefits. Since his parents both passed away, the defendant has no one else in Hong Kong apart from his girlfriend.

8. Mr. Li in mitigation told the court that the defendant had went to the flat in question and entered to see if there was anything to steal from any of the rooms. He did not bring or use any equipment to commit the offence. He found the folding gate of the flat already ajar and decided to enter the flat to see if there was anything to steal. It is the defendant’s case that the door to room 3 was closed but not locked. The defendant went into room 3 but he found that there was nothing to steal and so he took the pots and the wok lid, which was not worth much.

9. Lastly, the defendant is not a drug addict and is in good health. He asks for leniency.

Sentencing guidelines

10. It is trite law that burglary of a domestic premises would usually attract a starting point of 3 years’ imprisonment, subject to any mitigating or aggravating factors. Mr. Li confirmed that the defendant is aware of this guideline sentence.

Sentence

11. The offence took place on a Wednesday morning. Although the folding gate to the flat which housed room 3 was left open, the defendant having entered the flat proceeded to open the door to room 3 in order to go inside to see if there was something to steal. It was not an opportunistic burglary.

12. The defendant was released from prison on 26^th April 2012 having served his 4 week sentence for assaulting a Police officer that was passed on him on 30^th March 2012. He was convicted of theft on 2^nd July 2013 and was sentenced to 2 months’ imprisonment. There is no evidence that he committed the burglary whilst he was on bail for that theft case and I have not taken into consideration his last conviction when sentencing.

13. Nevertheless, the defendant is a repeated offender. This is his third burglary conviction and thirteenth conviction involving dishonesty. Although I find this an aggravating factor, I do note that his burglary convictions were 6 and 13 years ago.

14. Balancing the defendant’s conviction record with the fact that the property stolen was of very small value, I will adopt a starting point of 3 years and 3 months’ imprisonment and discount it to 2 years and 2 months’ imprisonment in recognition of the defendant’s guilty plea.

15. The defendant is sentenced to 2 years and 2 months’ imprisonment.