HKSAR v. CHAN KIT ON

DCCC 6/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 6 OF 2011

____________

____________

--------------------------------

REASONS FOR SENTENCE

--------------------------------

1.  The defendant pleads guilty to one charge of burglary of domestic premises, contrary to section 11 of the Theft Ordinance, Chapter 210 (charge 1) and one charge of loitering with intent, contrary to section 160(1) of the Crimes Ordinance, Chapter 200 (charge 2).

2.  In summary in the early hours of the 9th December 2010 the police saw the defendant loitering around Block 7C and 7D of Bela Vista Villa holiday homes in Cheung Chau. After entering Block 7C and 7D the police intercepted the defendant when he was seen leaning towards the door of unit C3, Block 7 as if to try and hear whether the unit was occupied. The defendant admitted he was lingering in the vicinity of Block 7 targeting unlocked premises to steal from (charge 2).

3.  During a search of the defendant’s quarters the police found an ‘iphone’. The defendant admitted that at about 5:00 a.m. on the 29th November 2010 he stole the phone together with a wallet from a unit in Bela Vista Villa, having gained access from an unsecured balcony. The owner of the phone confirmed the phone and wallet went missing between the 28th and 29th November whilst staying at Unit C3 on the 1/F of Block 13.

4.  In passing sentence I have carefully considered everything said by Mr Cheng on behalf of the defendant, including that the defendant fully cooperated with the police and is now remorseful.

5.  The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years imprisonment (see Attorney General v LUI Kam-chi [1993] 1 HKC 215 as applied in Attorney General v LO Ching-fai [1996] 2 HKCLR 19).

6.  The burglary was committed in the early hours of the 29th November when the premises were occupied and when anyone would clearly have expected them to be occupied (see HKSAR v TONG Fuk-sing [1999] 3 HKLRD 710). This is an aggravating feature of sentence; although I note the occupier was unaware the premises were in fact burgled. When she discovered her property was missing she only made a loss report to the police. The confession therefore of the defendant that the phone was obtained from burglary of a unit in Bela Vista Villa clearly assisted the police in tracing the owner of the phone. In the circumstances I do not propose to increase the starting point by reason of the fact the burglary took place when the premises were occupied.

7.  The defendant was clearly loitering with intent to commit burglary when he was intercepted and arrested by the police. I am satisfied the proper starting point after trial is 6 months imprisonment, which is the maximum sentence for this charge.

8.  Giving the defendant full credit for his pleas of guilty he is sentenced to 2 years imprisonment for the burglary and 4 months imprisonment for loitering with intent. The loitering is separate and distinct from the burglary committed one week earlier, for which a consecutive sentence is appropriate. I am satisfied a total sentence of 2 years and 4 months imprisonment properly reflects the defendant’s criminal culpability on the two charges.