HKSAR v. UN KUONG CHON

DCCC 1096/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1096 OF 2009

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Reasons for Sentence

1.  The defendant faces 2 charges of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210.

2.  In relation to charge 1, it is alleged that the defendant on 5^th April 2006 in Hong Kong, having entering as a trespasser part of a building known as Rooftop, nos.168-170, Ki Lung Street, Sham Shui Po, Kowloon, stole therein 2 notebook computers, 1 electronic dictionary, 2 bank passbooks and $2,000 cash.

3.  In relation to the amended charge 2, it is alleged that the defendant on 28^th June 2009, in Hong Kong, having entered as a trespasser part of a building known as Room No.1, 1^st floor, Tse Wan Mansion, No.23, Shek Kip Mei Street, Sham Shui Po, Kowloon, stole therein $1,500 cash.

4.  The defendant pleaded not guilty to charge 1 but guilty to charge 2, admitted to the re-re-amended summary of facts and was duly convicted on charge 2. Upon the conviction of the defendant on charge 2, the prosecution applied to leave charge 1 on court file. The application was granted.

Facts

5.  At about 2pm on 28^th June 2009, PW1 and her husband left their home at Room no.1, 1^st floor, Tse Wan Mansion, no.23 Shek Kip Mei Street, Sham Shui Po. When they returned home at about 11pm that night, PW2 found signs of ransacking in her bedroom and the window frame in the bedroom had also been dismantled. Upon checking, Pw1 found that the $1,500 cash which was kept inside the bedside cabinet was missing. She made a report to the police.

6.  The police investigated and lifted a fingerprint on the surface of the bedside cabinet inside the bedroom. The fingerprint matched that of the defendant’s right thumb print and the defendant was arrested on 18^th August 2009 for burglary.

7.  At the material time, the defendant entered the room as a trespasser and stole the cash mentioned above.

Previous convictions

8.  The defendant has 2 previous convictions, 1 for false imprisonment, for which he was sentenced in 2001 to 18 months’ probation. The other conviction is for the offence of burglary, he was sentenced on 19^th October 2006 to 3 years and 3 months’ imprisonment.

Mitigation

9.  The defendant is 25 years old. He was married in August 2009 in China. It was discovered earlier this year that his mother is suffering from tuberculosis. She is receiving treatment and is expected to fully recover in about 6 months. Mr. Fu for the defendant pointed out that the defendant had pleaded guilty, that the money taken was only $1,500, no weapons were used in the burglary and it was not carried out at night time when residents are likely to be home and would have faced greater trauma. Mr. Fu had explained to the defendant the sentencing tariff for burglary of a domestic premises and he fully understands the consequences of his guilty plea.

Sentencing tariff

10.  For a burglary committed at domestic premises, the normal starting point is one of 3 years’ imprisonment (see Attorney General v. Lo Ching Fai [1996] 1 HKC 747).

Sentence

11.  I do not see any aggravating factors in this case to depart from the tariff. I have noted that the defendant has 1 previous similar conviction but I find that there is nothing, yet, to suggest that he is a professional burglar. The previous offence was some 5 years ago. I think he had already paid for that crime and should not be punished again. I will therefore follow the sentencing tariff and adopt a starting point of 3 years’ imprisonment, granting the defendant the full one third discount for his plea of guilty, the defendant is sentenced to 2 years’ imprisonment.