HKSAR v. HO KWOK CHEONG

DCCC 1019/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1019 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a single charge of burglary. He entered the premises in Yau Ma Tei and stole seven masks.

2.  The facts as agreed by the parties are that the burglary occurred on the evening of 18 September, morning of 19 September 2016.  The premises that were burgled were the premises of a trading company which carried out a medical beauty treatment business at the premises in Jordan Road, Yau Ma Tei.  Those premises were divided into two units.  One was an office which was locked.  The other one was a pantry with an unlocked folding door.  The two units were situated right beside one another.  

3.  The premises were locked on the evening of 18 September 2016.  On the morning of 19 September 2016, at around 9.10 in the morning, the defendant was found searching the fridge in the unlocked pantry.  Police were called.  They arrived and searched the defendant.  They found seven pieces of face masks which were seized from the rucksack the defendant was carrying, and those are the items the defendant has actually been charged with.  There was also a recycle bag on the floor near the defendant containing various other items. 

4.  The face masks, I am told, were valued $550.  The other items found in the recycle bag with which the defendant is not charged was valued at $7,150.  The masks found in the defendant’s bag or rucksack had been found to be stored inside the fridge and belonged to the trading company.

5.  The defendant in his video-recorded interview said he had found the pantry unlocked. 

6.  The defendant’s antecedents show he is aged 40. He has some 20 previous appearances in court, and he has extensive convictions for possession of dangerous drug and also trafficking in a dangerous drug.  He has been sentenced to drug addiction treatment centre and terms of imprisonment. Relevant to the conviction today is that he was convicted of two charges of attempted burglary on 8 January 2015, receiving 30 months’ imprisonment on each concurrently.  He was released from that total sentence of imprisonment on 11 August 2016 and then committed this offence just over a month later.

7.  The defendant is educated up to Form 2 level in Hong Kong.  He is married but his wife lives in the mainland.  His mitigation says that he has a 2-year-old son in the mainland.  He has been addicted to the drug “Ice”, he says, for many, many years, 20 years.  That is borne out by his conviction record.

8.  As far as the mitigation is concerned, he said this is an unplanned offence.  The defendant had taken “Ice” earlier that day and was to a certain extent under its influence.  He had entered the premises which were unlocked, found the masks in the fridge and then out of momentary greed taken them.  It is said to be an opportunistic burglary, unplanned, no tool was being used. 

9.  Defendant is remorseful.  He clearly sees his problem as being one of substance abuse and before his arrest for this offence had been to the West Kowloon Psychiatric Centre for substance-abuse counselling and treatment.  He hopes on release to follow that up. 

10.  As far as the sentence for an offence such as this is concerned, this is a non-domestic burglary.  The guideline sentence for such an offence committed by a person of clear record after conviction after trial would be a starting point for sentence of 30 months’ imprisonment.  There would also be in this case the aggravating factor that the defendant has committed or attempted to commit a burglary in the recent past and clearly the sentence for that offence did not deter the defendant from committing this offence.

11.  However, the starting point for sentence set out by the guideline obviously covers a wide range of ways of committing the offence of burglary.  Now, defence counsel submits there can be some, a more lenient approach to the starting point for sentence in a burglary such as this which is simply a walk-in burglary, an opportunistic burglary taking advantage of an open door or an unlocked door, involving the taking of items of not great value.  Although the defendant may have been in a position to take items that were found in his recycle bag, in fact those do not form part of the charge he faces today.

12.  Taking all these factors into account, I will take a starting point for sentence of 24 months’ imprisonment.  I will add a further 3 months to that starting point for the aggravating factor of the defendant’s previous conviction for an akin offence.  The defendant has indicated a plea of guilty from early stage.  He is entitled to the full one-third discount.  This is his final sentence of 18 months’ imprisonment, and that is the sentence I will impose.