HKSAR v. FAN KIN MING

DCCC 203/2024

[2024] HKDC 2048

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 203 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a charge of burglary.

The summary of facts

2.  At about 1707 hours on 29 July 2023, PW1 returned to her sub-divided unit and found her unit had been broken in and ransacked. Very soon afterwards, the defendant opened the door of PW1’s unit and he was seen holding PW1‘s handbag.

3.  The defendant said: “you are back”.

PW1 said: “you stole my belongings”.

4.  The defendant threw the handbag towards PW1 and ran away. PW1 found the HK$30,000 and RMB3,000 inside the handbag were missing.

5.  CCTV record showed that the defendant together with another man entered PW1’s building at about 16:52 hours and dashed out from the same building at about 17:11 hours. The other male was seen following the defendant by holding a plastic bag when leaving the building.

6.  The defendant remained silence when he arrested on 13 September, 2023.

Criminal records

7.  The defendant has a long list of records since 1995 to 2021.

(a)  16 of which were burglary offences

(b)  One offence of attempted burglary

(c)  Other records included gambling offence, trafficking in dangerous drugs, keeping a divan, possession of offensive weapon and etc.

(d)  The defendant was discharged from prison in April, 2022.

Background/ mitigation

8.  The defendant is 45 years of age. He used to be a casual worker making a monthly earning of around $18,000. He occasionally worked for his mother in the wet market for a daily wage of $1,000. He stopped working since June 2023 because he started to gamble, lost huge sums of money and became a drug addict again.

9.  The defendant in his mitigating letter said that he would compensate the victims after his discharge from prison. However, I am told today that he can pay $12,000 from his prisoner property to PW1 as compensation.

10.  During his period of remand, he has found faith in religion; he has received counselling from Hong Kong Christian Kun Sun Association Ltd.  He is now remorseful and determined to turn over a new leaf. He will help his mother to run the business in the wet market after his discharge from prison.

Sentence

11.  The defence attached 11 cases in his mitigation bundle, just to name two :-

(a)  Webb v O’ Sullivan [1952] SASR 65, this is a case concerning driving under the influence of intoxicating liquor.

(b)  R v Osenkowski [1982] 30 SARS 212, this is case concerning possession of heroin for sale.

12.  Suffice to say that they are totally irrelevant and have no persuasive effect to the present case.

13.  It is well settled that for a domestic burglary, it attracts a starting point of 3 years. R v Chan Yui-man CACC 361/1988 refers.

14.  According to the judgement of HKSAR v Cheng Wai Kai CACC 338 & 339/2007 and HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 that there are a number of aggravating factors in the present case :-

(a)  The defendant did not act alone, there was another man involved in the burglary.

(b)  The defendant is a professional burglar. The lock of the door was not damaged; it goes to show the skill of opening a locked door.

(c)  He has 16 previous similar records and committed the present offence one year after his release from prison.

15.  It is clear to me that the previous sentence served no deterrent effect upon the defendant.

16.  As such, there is a need to increase the starting point by 9 months to deter the defendant from committing further offences and to protect the public in general.

17.  The starting point is now arrives at 45 months (36 + 9), given 1/3 discount to reflect his guilty plea, it comes down to 30 months.

18.  Finally, I ordered the defendant to pay HK$12,000 compensation to PW1.  I understand that the $12,000 has been deposited into the Accounts Office of the District Court by now.

19.  As such, I further reduce one-month imprisonment to reflect this mitigating factor.

20.  The defendant is ordered to serve a sentence for a period of 29 months imprisonment ( 30 -1 )  ,  that is 2 years and 5 months.