HKSAR v. CHAN YAN CHEUNG

DCCC 1096/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1096 OF 2012

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of attempted burglary of the Imperial Korean Restaurant, contrary to section 11 of the Theft Ordinance, Chapter 210 and section 159G of the Crimes Ordinance, Chapter 200.

2.  In summary at around 11:30 p.m. on the 22nd August last year the proprietor of the restaurant locked and secured the main door with a chain and padlock and switched on the security alarm system.  At around 01:30 the next morning the security alarm sounded and the police were called.  Police officers, including PC10396, arrived and found scratch marks on the two wooden handles of the main door but the metal chain and padlock were still intact.

3.  The police reviewed the CCTV record of the restaurant which showed a male tampering with the metal chain of the main door and fleeing when the alarm sounded.  PC 10396 recognised the male as the person he had intercepted earlier at 02:00 a.m. at 382 Lockhart Road, which was about 200 meters from the restaurant. Nothing suspicious was found on the male at the time so he was allowed to leave after PC 10396 took down his personal particulars.  The particulars were those of the defendant.

4.  The defendant was arrested at 6:20 p.m. the same day.  Under caution and in a subsequent video interview the defendant admitted he was looking that night for an easy target to burgle.  The defendant said that he tampered with the metal chain of the restaurant with an iron drill bit which he had found on the street.  When the security alarm sounded he discarded the iron drill bit and fled when he was intercepted by PC 10396. 

5.  In passing sentence I have carefully considered everything said by Mr Fung on behalf of the defendant, in particular that his mother is mentally ill and lives in an elderly home and that the defendant due to hepatitis and heart disease is unable to work and relies on social welfare.

6.  The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months imprisonment.                      (see Attorney General v Lui Kam Chi [1993] 1 HKC 215).  I am satisfied no distinction is to be drawn by the fact this was an attempt.

7.  The defendant is properly to be regarded as a persistent offender, having multiple convictions for offences of dishonesty, including five for burglary, the last burglary being in 2010 when he was sentenced in the District Court to 20 months imprisonment.  Previous sentences have clearly had no deterrent effect on the defendant.  I am satisfied the starting point is to be increased by 6 months to 3 years imprisonment (see HKSAR v CHAN Pui-chi [1999] 2 HKLRD 830).

8.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 years imprisonment. 

9.  The defendant is in breach of a 4 months imprisonment sentence suspended for 2 years by the Kowloon City Magistracy on the 24th April 2012 for an offence of tampering with a motor vehicle.  I have had the opportunity of reading the relevant case papers.  There are no exceptional circumstances not to activate the sentence.  The sentence is activated and ordered to be served consecutive to the sentence of 2 years imposed today.  This means the defendant will serve a total of 2 years and 4 months imprisonment which I am satisfied properly reflects the defendant’s criminal culpability on these charges.