HKSAR v. WONG KIN SUN

DCCC 434/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 434 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant is convicted upon his pleas and admission of the facts of two charges. Charge 1, attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210, and section 159G of the Crimes Ordinance, Cap 200. Charge 2, loitering with intent, contrary to section 160(1) of the Crimes Ordinance, Cap 200.

The facts

2.  The subject squatter huts were built on a piece of land in Pat Heung, Yuen Long, New Territories, which is of about 2000 square feet.  The land was enclosed by a 2-metre-high fence or otherwise by the wall of the huts.  The fence had two iron gates which allowed access to the huts. At the material time, one of those iron gates had been left unlocked as always.  Outside the enclosed land were public pedestrian roads leading to Kam Po Road.  As there was no objection from the defence, I had viewed a sketch and certain photographs of the land and the huts, as submitted by the prosecution. At the material times, PW1 and his family resided in those huts on the land.

3.  In relation to Charge 1, which took place on 7 October 2016, at about 10 am, when PW1 was inside his bedroom, which was one of the huts in the enclosed land, he suddenly saw the defendant opening his bedroom door.  PW1 immediately confronted the defendant, to which the defendant replied that he was looking for someone.  The defendant then immediately turned around and left the land through the unlocked gate.  On that occasion, PW1 did not report the case to the police.

4.  In relation to Charge 2, which took place on 15 October 2016, ie about a week later, at about 8 pm, PW2, a female domestic helper, was working in the kitchen, which was another hut located at the edge of the enclosed land.  Outside the window of the kitchen was the pedestrian road.  At that time, PW2 saw the defendant wandering on the pedestrian road suspiciously for about one minute.  PW2 in turn informed PW1, who went out to intercept the defendant.  PW1 recognised the defendant to be the person whom he saw in the incident under Charge 1.  This time, he reported the case to the police.

5.  The defendant was later arrested and on the next day, ie 16 October 2016, the defendant in his cautioned interview admitted the followings:-

(a) in both incidents 1 and 2, he lingered outside the huts for about 10 minutes;

(b) he had previously met PW1 when PW1 was sitting in his hut. The defendant said he had entered through the unlocked gate, but thinking that it was a public place as the whole place was messy;

(c) in both incidents he wanted to see if there was anything that could be stolen, but did not actually steal anything at the end.

6.  On the next day, ie 17 October 2016, the defendant repeated the above admissions in video recorded interviews. 

Defendant’s background

7.  The defendant is now 40 years old, single, born in Hong Kong, educated up to Form 1.  He was living with his parents in Yuen Long and working as a worker, earning about $6,000 a month prior to arrest.

8.  He had three previous convictions.  They include a theft in 1995 for which he was fined $1,500; and in 1995 he was convicted of wounding for which he was sent to Detention Centre; and finally in 2006 he was convicted of gambling for which he was fined $500.  He was also involved in a criminal intimidation case in 2010 for which he was sent to Siu Lam Psychiatric Centre for 3 months.

Mitigation

9.  Both the criminal records and the antecedents of the defendant as above were admitted by the defence.  The defence submitted a letter written by the defendant’s younger sister, pleading for leniency for the defendant.  It was also supplemented by the defence that, in fact, the defendant had already divorced and had a son of 10 years old living with his ex-wife.

10.  It was submitted as mitigation on his behalf that he had admitted the offence immediately after arrest; there was no force used or injury caused to anyone in this case nor was there any damage to any property.

11.  The defence has helpfully submitted three cases.  The first two cases are in relation to Charge 1 of attempted burglary.

12.  They are Attorney-General v Lui Kam Chi [1993] 1 HKC 215, where the Court of Appeal set down the sentencing guidelines of 3 years’ imprisonment for an ordinary domestic burglary case. 

13.  The second one is HKSAR v Po Yan Chuen [2002] 2 HKC 172, where the Court of Appeal approved a sentence of 3 years’ imprisonment for a case of attempted burglary involving domestic premises when the victim had been alarmed. 

14.  The last case submitted by the defence is HKSAR v Lai King On, DCCC 943/2012 which was a District Court case involving a charge of loitering.  In that case, the defendant was given a starting point of 4½ months’ imprisonment for an offence of loitering with intent under section 160(1). It was submitted that the defendant was a persistent offender with also a similar record of loitering before that case.  The court was invited to adopt a lower starting point in this case because the absence of those aggravating factors.

Sentence

15.  I first deal with the attempted burglary under Charge 1.  Although the defendant is charged with and convicted of an attempted burglary, it is, as stated in the particulars of the offence, in relation to the hut which the defendant was attempting to trespass into.  He did so by opening the door of the hut.  In fact, at that time, he was already on the enclosed land on which the hut was built. 

16.  More importantly, the fact that he was unable to go further and complete the offence was simply because of PW1’s alertness and confrontation.  Though PW1 was not injured at all, he must have been frightened or alarmed to a certain extent.  I therefore do not consider this case less serious than a complete offence.  I would therefore adopt the usual starting point of 3 years’ imprisonment for an ordinary domestic burglary.  See Lui Kam Chi and also Po Yan Chuen above.  I am prepared to give the usual one-third discount for the defendant’s guilty plea.  The final sentence for Charge 1 is 2 years’ imprisonment.

17.  I now deal with Charge 2, loitering with intent.  I am aware of the maximum penalty is one of $10,000 fine and 6 months’ imprisonment.  I agree that this is a less serious case when comparing to the District Court case submitted by the defence, ie Lai King On, as the defendant here has no previous similar record of loitering and his criminal record is less lengthy and less serious.

18.  In fact, this case is more similar to another case, HKSAR v Yeung Kwang Hung, CACC 217/2010.  That was a case when the applicant pleaded guilty to several offences of burglary and also one of loitering with intent and one of possession of Part I poison.  The facts of that case disclosed that the applicant was seen by a car-owner pulling the handles of two vehicles which were parked in meter-parking spaces.  Upon arrest and caution, the applicant admitted that he was trying to gain access to the parked car to see if there was anything to steal.  After appeal, the Court of Appeal considered that a 3 months’ starting point is appropriate for that charge and made it 2 months’ imprisonment after giving a one-third discount for the plea.  The Court of Appeal also ordered that 2 months’ imprisonment under the loitering charge to be served consecutively to the sentence of 40 months’ imprisonment for the other burglary offences in that case.

19.  Going back to this case, I therefore adopt a starting point of 3 months’ imprisonment for Charge 2, again reduce it by one-third for the defendant’s guilty plea and make it 2 months’ imprisonment.

20.  I order that 2 months’ imprisonment under Charge 2 to run consecutively to the 2 years’ imprisonment under Charge 1.  The total sentence is one of 2 years and 2 months’ imprisonment.