HKSAR v. CHEN HO YIN

DCCC 347/2021

[2021] HKDC 1169

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 347 OF 2021

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one charge of burglary. The particulars of the offence read that the defendant, having entered as a trespasser a building at No 221, Tai Wo Tsuen, Yuen Tai Road, Pat Heung in Yuen Long, stole therein one can of Coke.

2.  The Summary of Facts, which the defendant has agreed, show that PW1 resided and managed a three-storey village house situated at that address.  And on 3 January, PW1 had locked the front and rear doors of the house.  On 9 January, PW1 went back to the house, found the front door was not locked properly and also there were various items of clothing and personal items in the house that should not belong there.

3.  The defendant was identified from a tag on a suitcase and he was asked to return to the house.  The defendant said that he had been estranged from family, had nowhere to go, so he decided to stay in that house for a few days.  He prised open an iron grille in order to enter the house.

4.  In a video-recorded interview he said he climbed over a fence into the garden, prised the iron grille and back door of the house with a red screwdriver; he had taken a can of Coke from the fridge and consumed it; he had put personal belongings into the house; he had no authorisation to enter the house.

5.  The repair costs to the iron grille and rear door amount to $4,000 and I am informed by the defence solicitor that that has in fact been repaid by way of restitution by the defendant to the victim.

6.  The defendant is now aged 26.  He has no previous convictions.  He has a court bind-over record in 2020.  I am also informed by the probation services that the defendant has failed to answer a court bail in March of 2021 in respect of a driving offence and I have no further information about that.

7.  A report has been obtained on the defendant. The report describes the defendant as having both emotional and psychiatric problems although he is in employment.  The defendant was assessed whilst in custody for the possibility of community service.  The community service order is not recommended through a conclusion in paragraph 11: “The defendant’s expressed the will to serve CSO.  Taking into account his background, attitude, unstable employment record, unwillingness to have medication for treating his mental problems, he is regarded as a marginal subject despite being mentally fit for a community service order which is work orientated.”  So there is no recommendation and he is considered to be marginal for that.

8.  Turning to the approach for sentencing. Defendant’s in fact convicted here of a domestic premises burglary and there is a tariff for such offence.  A person of clear record who pleads not guilty and is convicted after trial can expect to serve a sentence, a starting point for sentence of 3 years’ imprisonment subject to any deduction for the defendant’s plea of guilty.

9.  I have been referred to two cases where the courts have departed from that operative guideline.  There is HKSAR v Kwok Wing Kam [2011] HKCU 396 where the defendant had entered a flat  where the door was not properly closed and drunk a bottle of lemon tea.  The Court of Appeal had determined that the proper starting point for sentence in a case such as that should be one of 15 months’ imprisonment.  Similarly, in the case HKSAR v Law Tin Yam [2010] CACC 258/2010, that was where the appellant had lived in a flat with multiple cubicles.  The appellant had entered another cubicle and taken a packet of cigarettes, and the cubicle was unlocked, that the victim’s belongings had been rummaged.  Again, a starting point of 15 months’ imprisonment had been adopted, leading to a final sentence of 10 months’ imprisonment after plea.

10.  It is submitted by the defence that these cases are similar to the defendant’s case.  The defendant had entered and, the expression I would use, had squatted in the flat for a few days, moved his belongings into there and had then committed the offence of burglary by taking a can of Coke.

11.  In fact, there is an aggravating feature in relation to the defendant’s entry of this premises in that he broke into the premises to gain entry, making it a perhaps more serious case than the two cases to which I have been referred to.

12.  My conclusion on the sentence the defendant should face is as follows: I do not consider this an appropriate case for the imposition of a community service order.  The defendant is, in my view, from the report I have obtained, not suitable.  He is described as a marginal subject.  Clearly there is unsuitability.  He has mental problems which he is unwilling to medicate.  He has disobeyed a court order in respect of an offence for which he was bailed in March 2021.  He has a history of failure to comply with the law in the sense that he has had to be bound over in the past.  He would be a poor candidate, in my view, for a community service order.  And in any event, given that the case involves the defendant breaking into the premises, he would not be suitable for a community service order.

13.  The appropriate sentence in my view, taking into account all the factors I have set out, is one of a sentence of imprisonment. However, I consider the imposition of the normal starting point to be inappropriate in this case.  The defendant’s motivation for entering these premises was to reside there and it seems that it was a spontaneous act to simply take a can of Coke, a very low value item, from a fridge while he was staying there.  So it is by no means what I would call a conventional form of burglary, but in itself is more serious than the two cases which the solicitor for the defence has referred me to.

14.  I also bear in mind the defendant is of clear record and that he has paid compensation.  What I should do is take a starting point at 18 months’ imprisonment.  I will reduce that to 12 months’ imprisonment for the defendant’s plea of guilty.  I shall also reduce the sentence by 2 months to reflect the defendant’s clear record and his restitution of the sum of $4,000 in this case.  So the final sentence should be one of 10 months’ imprisonment for the defendant.