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DCCC 668/2017
[2018] HKDC 153
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 668 OF 2017
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| Present: |
Mr William Siu, SPP, of the Department of Justice, for HKSAR
Mr Jeremy Cheung instructed by Rita Law & Co, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
Burglary (入屋犯法罪) |
REASONS FOR SENTENCE
1. The defendant, a Form 8 holder from Mongolia, pleads guilty to one charge of burglary of a shop in Tai Kok Tsui, contrary to section 11 of the Theft Ordinance[1].
2. In summary at the time of the burglary the shop was vacant and used as a storage of construction materials by nearby workers. Wooden boards surrounded the shop with the door secured with a padlock. Photographs of both the outside and inside of the shop have been submitted to the court.
3. In the early evening of 22 April last year the defendant was seen by Ms Chan prizing the lock with a screwdriver. The police were called and the defendant arrested as she was walking out of the shop carrying a plastic bag inside which were electrical wire and various tools particularised in the charge[2].
4. The defendant was also carrying a sling bag inside which was a needle, a chisel and two locks with keys.
Mitigation
5. In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Cheung. While the defendant does have convictions for theft in 2013 I take into account the defendant has no previous convictions for burglary.
Starting point
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.
7. I do not agree with Mr Cheung that this was an opportunistic burglary. The defendant used a screwdriver to prize open the lock.
8. Lower starting points have however been taken where premises are vacant, under renovation and the property stolen is of little value[3]. Mr Siu informs the court the value of the items stolen was less than $100. In the circumstances I am satisfied a starting point of 2 years’ imprisonment is appropriate.
9. The commission of offences by refugees or torture claimants is capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation for order and security.
10. Not every case will result in enhancement. Taking into account the premises were not occupied and the value of the property stolen was very small I do not enhance the starting point by reason of your Form 8 status.
11. Giving the defendant full credit for her plea of guilty she is convicted and sentenced to 1 year and 4 months’ imprisonment.
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(D. J. DUFTON) |
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District Judge |
[1] Cap 210.
[2] The tools included two screwdrivers. Mr Siu explained that Ms Chan (PW1) said she clearly saw the defendant use a screwdriver to prize open the padlock. However, when the two screwdrivers were shown to Ms Chan she was unable to identify either of them. The prosecution proceeded on the basis that the screwdriver used by the defendant was not recovered.
[3] See for example HKSAR v Cheung To Ming [2006] 2 HKLRD 260; HKSAR v Yeung Kwok Sang CACC 4/2006; HKSAR v Chau Man Ying CACC 439/2011 and HKSAR v Lee Chiu Yui [2015] 1 HKC 323 cited by Mr Cheung.
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