HKSAR v. SEE CHAK FOON

 DCCC139/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 139 OF 2010

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

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

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

Reasons for Sentence

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

1.  Defendant, you have pleaded guilty to a single offence of burglary, contrary to sections 11(1)(a) and (4) of the Theft Ordinance, Cap. 210. You admitted the brief facts, and I convicted you.

2.  The facts were as follows. KMB Kwun Tong bus depot is at No. 98 How Ming Street. It has been vacant since 2006 pending redevelopment. It was fenced in. All entrances were secured and, in the daytime, there are security guards. At around 11 pm on 27 December last, a passer-by, Mr Chu, saw a male climb up a water pipe and go over the wire fence into the depot. He called the police. At about 11.25 pm, officers arrived at the scene. They found you alone on the rooftop on the 3rd floor. You tried to flee but you were soon intercepted.

3.  Under initial questioning, you admitted entering the depot with a view to stealing metal to sell. Upon arrest and caution, that admission was repeated. Later, staff checked the depot and found nothing to be missing or damaged. In your possession, there was only a torch.

4.  You admitted to 11 previous convictions, only one of which related to dishonesty. In fact, that conviction is subsequent to the present offence, and that means that, at the time of the commission of this offence, you were a person without any previous convictions involving dishonesty, though having said that, you generally do have a poor record. You are concurrently serving a short prison sentence. Your earliest date of release is within days.

5.  Mr Leung, on your behalf, entered very effective mitigation. He told me that you are 52 years of age, married with two sons aged 16 and 11, one of whom unfortunately is handicapped. Your mother who is elderly resides in the mainland and is in poor health. You regularly remit $2,000 per month to her. You are in receipt of Social Welfare payments. After the rent and sending money to your mother, you are left with less than $4,000 to feed and clothe yourself and your family. You supplement this income by scavenging in the street, which brings in an extra $1,000 to $2,000 per month but this is irregular.

6.  Turning to the offence itself, Mr Leung said this was not premeditated. You did not go out equipped to break and enter, having with you only a torch. This was an opportunist offence in which you climbed into the depot looking for scrap metal to subsidise your income. Nothing was taken; nothing was broken; and there was no question of breaking and entering.

7.  Mr Leung then referred me to two authorities, HKSAR v Sim Ka Wing CA No. 450/2000 and HKSAR v Cheung To Ming CA No. 406/2005. The latter followed the former both in terms of time and principle to the extent that they established together the normal tariff of 2½ years. That should be decreased where the burglary is not planned and is akin to being a sneak theft. I acknowledged the force of those authorities and take them fully into account when setting sentence.

8.  In the present case, whilst you have a poor record, at the time of the commission of the offence, you had no previous convictions for dishonesty. Clearly, from what has been put before me, your family were and are in dire financial straits, and I accept that this is the motive for the commission of the offence.

9.  Also, I accept that the burglary itself was opportunist and unplanned. The entry was into a vacant site awaiting redevelopment. No damage was done. Nothing was taken, and there was no breaking and entering. Also, I note that upon arrest, you were entirely cooperative with the police. I accept, therefore, that a departure from the normal sentence of 2½ years as a starting point is entirely correct in all the circumstances.

10.  There are some differences from the facts in the case of Cheung To Ming, and I shall reflect those in the sentence that I deliver.

11.  In the present case, I take a starting point of 21 months’ imprisonment reduced to 14. You will go to prison for 14 months. And whilst it is but days from your release from your present sentence, I do order that to be concurrent as a matter of mercy.