HKSAR v. CHEUNG LAI HUNG

DCCC 339/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 339 OF 2013

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REASONS FOR SENTENCE

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Overview

1. The defendant pleaded guilty to one count of attempted burglary (Charge 1) and one count of theft (Charge 2).

The facts

2. At about 1215 hours on 6November 2012, the defendant was found acting suspiciously and smoking at the lift lobby on 25^th Floor of Chung Lai House, Hang Chun Court, Cheung Sha Wan, Kowloon.  PW1, the resident of Room 2501 of the building (“Room 2501”), decided to made a report to the security office, so she left home for reporting.

3. At about 1240 hours on the same day, PW2, the security guard of the building, saw the defendant loitering on 25^th Floor.  Upon enquiry, he claimed that he was waiting for somebody.  At that juncture, an unknown person suddenly dashed from the corridor of Room 2501 towards the stairwell.  PW2 then found that a red handle screwdriver was stuck in the gate of Room 2501.  At the same time, he lost sight of the defendant but found a brown paper bag outside Room 2506.  A report was made to the police.

4. Later, PW1 found the sign of prizing on her gate and a screwdriver was stuck therein.  She could not open the gate with her keys.  When she went down to the security counter on ground floor, she met the defendant who was holding a can of matt floor paint inside the lift.  The defendant was eventually intercepted by the security guards.

5. Upon enquiry, the defendant claimed that he was a decoration worker on 26^th Floor.  The contractor of Room 2601 however confirmed that it was not the case and identified that the can of paint held by the defendant belonged to him.

6. Upon arrival of the police, the defendant was arrested.  In subsequent video-recorded interview, he under caution admitted that he had taken the can of paint outside Room 2601 and claimed that he was looking for his friend named “Ah Shan” of Room 2502.

7. Upon enquiry, the residents of Room 2502 confirmed that they had been living there since 2000 and that no one by the name of “Ah Shan” had ever resided thereat.

8. At the scene, police officers seized the screwdriver on the gate, one glove, one plastic bag and a cigarette butt outside Room 2501.  They also seized one glove and a brown paper bag, in which two crowbars and a receipt dated 7 November 2012 issued by a hardware metal store, outside Room 2506.  The staff of the hardware store confirmed that she sold the crowbars and a pair of gloves on 6 November 2012 but not 7 November.

9. Upon forensic examination, the defendant’s DNA was found on the cigarette butt and the glove seized outside Room 2501.  Some blue powder lifted from the gate of Room 2501 was confirmed to match with one of the crowbars in the brown paper bag.  Another person’s DNA was also retrieved from the glove found outside Room 2506.

Mitigation

10. The defendant is now 54 years of age, a married man.  He was educated up to primary level in Hong Kong.  He used to work as a driver but he was lay off by his employer in 2012.  He has been unemployed ever since.  Occasionally he worked as a driver on casual basis earning about HK$7,000 each month.  I am told that he has to take care of his senile mother and would make monthly contribution to support her financially. He resides with his wife aged 53.  His daughter is now aged 29, married and living apart.  I am also told that he was a drug addict.

11. He has three criminal records but none of which is similar.  They are all gambling offences.  Also I am told that he has been arrested for an offence of trafficking in a dangerous drug which is alleged to be committed in May 2013.  For sentencing purpose, I will wholly disregard them in my deliberation.

12. In mitigation, a letter in Chinese was submitted in which the defendant states that he is now very remorseful.

Sentence

13. For burglary of domestic premises, the usual starting point is one of 3 years’ imprisonment for a first offender of full age without aggravating or mitigating features.

14. In this case, the intended burglary targeted at residential premises.  Obviously the defendant had spent some time loitering inside the building and he must be “selecting” and observing the potential premises to be burgled.  The gravamen of domestic burglary cases lies in the fact that occupants or residents of the victimized premises might be put to fear.  In the present case, if PW1 returned home during the course of the commission of the offence, she will no doubt be put to fear or even subject to physical harm if there be any encounter with the burglar.

15. Furthermore, the defendant equipped with prizing tools such as crowbars, gloves and screwdrivers.  In my view, he was not an opportunistic burglar and the offence must be premeditated, though it may not be sophisticated.

16. Having considered all the circumstances and everything urged upon me in mitigation, I adopt a starting point of 3 years’ imprisonment for Charge 1 and 6 weeks for Charge 2.  To reflect his guilty plea, the sentence for Charge 1 is reduced to 2 years and Charge 2 is reduced to 4 weeks.

17. Having considered the totality principle, I order that the sentences be run concurrently.

18. In the result, the defendant is sentenced to 2 years’ imprisonment.