HKSAR v. Chan KAI KAU

DCCC1086/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1086 OF 2011

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Reasons for Sentence

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1.  The defendant enters a plea of guilty to one charge of burglary, preferred against him under section 11(1)(b) and (4) of the Theft Ordinance, Cap.210.

Facts

2.  The facts to which he agrees are as follows.

3.  The subject premises used to be a public school.  A room in it was let to a sports association. 

4.  At the material time, the tenant had left the room unlocked and unattended.  On the early morning of 25^th June 2011, the defendant went in the room and stole a nylon bag, nine pairs of cymbals, three pairs of lion-dance pants, eight cans of beers, seven packs of biscuit, three packs of soy milk, two packs of anti-mosquito coil, a pack of soap, a pair of plastic gloves and a torch.  The total value of the stolen items was about $3,349.

5.  The defendant was intercepted by a police officer on anti-burglary patrol.  Under caution, he admitted to the offence.

Conviction

6.  The court finds the defendant guilty as charged.

7.  The defendant has had five criminal records prior to his current conviction, two of which were for the offence of burglary.

Mitigation

8.  In mitigation, the defence puts forward the following matters for the court’s consideration.

9.  The defendant is now 48 years old, and has received up to Ordinary Level education in England. 

10.  His father’s family lives in South Wales, England, and runs a shop there.

11.  The defendant returned to Hong Kong in 1989 and worked until 1993.  He went back to England, returning two years later in 1995.  Between 1995 and 1998, he has made successful investments and accumulated significant wealth, which he lost however, when his investment failed.

12.  After a marriage of six years, the defendant and his wife divorced each other in 2000.  They have no offspring.

13.  Counsel submits that the family break-up had dealt the defendant a heavy blow.  Since then, the defendant has remained largely unemployed, living mainly on social security benefits.

14.  His father’s family remains supportive of him. A brother has flown from England to place before the court a clemency letter written by the defendant’s parents.

15.  In that letter, the parents ask the court for leniency in sentencing the defendant.  They promise the court they will help the defendant rebuild his life and turn over a new leaf.

16.  Counsel for the defence relies on the case of HKSAR v Sim Ka Wing CACC 450/2000 and urges the court to consider a lower starting point on account of the opportunistic way in which the defendant has committed the offence.

17.  Finally, counsel reveals that when the defendant was brought back to his home for a house search, he jumped out of a window, fell from the 10th floor, and landed on a canopy.  The plunge resulted in serious injuries to his back and brain, fracturing his right lower leg.  Fortunately, after hospitalisation for two months, he has recovered without permanent disability.

18.  Counsel does not seek psychiatrists’ opinion on the defendant’s mental state before sentence.

Discussion

19.  The court gives a high priority to the protection of private property from unlawful interference.  Prevalence of this offence would give Hong Kong, a city of commerce, a bad name.  Unfortunately, the offence of burglary is far too common.

20.  In view of these factors, the Court of Appeal has laid down a sentence guideline of two and a half years’ imprisonment for offences of burglary committed in non-residential premises.

21.  The facts of the case show, however, that the burglary committed by the defendant contained an opportunistic element in it. He said under caution that he was having a walk and noticed the door of the room was open; out of momentary greed, he went in to steal.

22.  The offence was therefore committed without premediation. The defendant acted alone and without any equipment.  The court agrees that the facts of the case are such as would allow the court to adopt a lower starting point.

23.  The defendant comes from a large family in England and has received adequate education.  Setbacks in life have however caused him to embark on a train of criminal activities since 2004.  He has been imprisoned for those offences and must be taken to be fully aware of the serious consequences of any fresh offending.

24.  The court notes the defendant’s suicidal attempt upon his arrest, and would recommend that psychiatric treatment and counselling should be provided to him while he serves his prison term.

25.  The court is told that the defendant has subsequent to the occurrence of this offence been convicted of the offence of theft and escaping from lawful custody, on which incident, a suspended sentence was activated.  His earliest day of discharge would fall on 30^th March 2012.

26.  In all the circumstances, the court would adopt a starting point of two years, which is reduced by one-third on account of the defendant’s guilty plea to one of 16 months’ imprisonment.

27.  Having considered the nature and circumstances of the offences for which the defendant was sentenced to eight months’ imprisonment in TMC 3800/2011, the court is prepared to impose a concurrent sentence.

Conclusion

28.  The defendant is sentenced to a term of imprisonment of 16 months, to run wholly concurrently with the balance of the sentence imposed on him in TMC 3800/2011.

29.  Psychiatric treatment and counselling should be provided to the defendant in prison.