HKSAR v. LUI CHIN PANG

DCCC458/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 458 OF 2011

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Reasons for Sentence

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The Charge and the Facts

1. This morning, the Defendant pleaded guilty to one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

2. The Summary of Facts which was admitted by the Defendant revealed that shortly after mid-night on 8 April 2011, when two police officers arrived at Room 2A of the 2^nd Floor, No. 2 Observatory Road, Tsim Sha Tsui, Kowloon, to conduct investigation in respect of a report of “Suspicious Person Found”, they heard some hammering sound emitting from inside the room. The door was closed at the time. When the officers entered Room 2A, they found the Defendant standing on top of a wooden drawer near the window in the living room and was prizing an air-conditioner with a screwdriver.

3. During subsequent enquiries, the Defendant admitted that he made open the door of Room 2A and was trying to dismantle the air-conditioner for sale. At the time, the Defendant also had with him a cutter and a pair of metal pliers. Under caution, the Defendant made similar admissions.

4. Now, although it was stated in the Summary of Facts that at the time when Room 2A was vacated by the occupant on 20 March 2011, the metal gate was still there, there was no mentioning in the facts about the Defendant removing the gate. I have also confirmed with the prosecution that the metal gate was not found in the vicinity of the premises. Therefore, I take it that the Defendant simply made open the door to gain entry.

Mitigation

5. The Defendant is now aged 26. He was educated up to Form 3 level and got married in the Mainland in 2009. After ceasing education, he had worked as a kitchen worker and a cleaning worker. In April this year after his arrest, he had worked as a delivery worker. However, since June 2011, he started to receive social welfare assistance.

6. The Defendant has been before the court on 5 previous occasions with 9 convictions, 5 of those are robbery offences. He committed those robberies when he was below 18 and he was sent to the Boys’ Home and the Detention Centre respectively. His other convictions are “possession of a dangerous drug”, “trafficking in a dangerous drug” and “aiding and abetting money laundering”.

7. The Defendant was last released from the prison in August 2010. Yet, in less than a year, he committed the present offence. In addition, the court was informed that after he was released on bail in relation to this offence, he committed yet another “theft” offence on 16 August 2011. He has pleaded guilty to that and he is now being remanded for sentence, pending CSO and DATC reports.

8. In mitigation, it was said that the Defendant made frank admissions at the scene and he has pleaded guilty, showing his remorse. Mr. Pickavant also suggested that the premises could perhaps be treated as commercial premises as it was believed that the room was to be rented and used as a one-woman brothel.

9. I reject this suggestion outright. The general lay-out of Room 2A and its neighbourhood indicate that the room is for residential use. Now, even if the premises were to be used as a one-woman brothel, the tenant would still be residing in the premises and it would mean that any burglary committed in the room would involve the possibility of the tenant bumping into the burglar and being shocked by him. This is one of the evils associated with burglary of residential premises. Therefore, not only is there no evidence to support the claim that Room 2A was to be used as a one-woman brothel, for the reasons mentioned above, I cannot see how the room could be treated as commercial premises.

Sentencing Considerations

10. Although the room was unoccupied at the time and no actual loss was caused, those are not the only factors which the court considers when passing sentence in respect of burglary offences.

11. It is well established that, generally, for burglary of domestic premises, the tariff is one of 3 years. The Defendant was equipped with the necessary implements at the time to break into the room and to dismantle the air-conditioner. I take 3 years as the starting point.

12. The financial reason given for the commission of the offence is no excuse.

The Sentence Imposed

13. In the present case, I see no mitigating factors apart from the Defendant’s plea and for that, I shall give him the usual reduction of 1/3. He is therefore to serve a term of 2 years.

14. As regards his outstanding theft conviction, it will, of course, be dealt with by the court concerned.