HKSAR v. CHOW HUNG MAN AND ANOTHER

DCCC 1199/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1199 OF 2012

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Reasons for Sentence

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1.  The two defendants pleaded guilty to charges of burglary before me. They were jointly charged in Charges 1 and 2. The 1st defendant was charged alone in Charge 3.

2.  These charges of burglary all occurred in October 2012 at the Tip Sum House, Butterfly Estate, in Tuen Mun:

(a) the 1st charge relates to a burglary on 12 October at premises on the 12th floor;

(b) the second charge relates to a premises on the 10th floor on 16 October; and

(c) the third charge relates to premises on the 11th floor on 20 October.

3.  In the 1st charge, the stolen items were HK$6,000, RMB12,000, 8,000 Taiwan currency, a handbag, three ornaments, two mobile phones, four bank passbooks, two passports, a game machine and five red packets containing HK$200.

4.  The 2nd charge relates to stolen notebook computer.  The 3rd charge was an attempted burglary.

5.  The facts are as follows.  At about 11.30 am on 20 October 2012, police officers were on plainclothes duty in Tip Sum House of Butterfly Estate in Tuen Mun.

6.  Whilst patrolling at the rear staircase, they heard some sounds of tampering with a metal gate on the 11th floor.  They thus looked to the corridor of the 11th floor and saw the 1st defendant tampering and attempting to open the metal gate and wooden door of one of the premises.  They saw him extending both his arms and grabbing the metal gate and shaking it and trying to open the wooden and door lock.

7.  They intercepted him and under caution he admitted he was trying to find out whether there was anyone inside those flats and if there was no one, he would burgle it.

8.  He was asked about other previous burglaries which occurred in the building and he admitted that he, together with the 2nd defendant, committed the first and second burglaries.

9.  He provided the address of the 2nd defendant, who lived in the same block.  Officers then laid ambush outside the 2^nd defendant’s flat and about 11.50 am when D2 was coming out of the flat, he was arrested.

10.  Upon D2’s arrest, he admitted committing the first and second burglaries.

11.  During a house search of D2’s flat, a crowbar which was used in committing the two burglaries, together with a handbag stolen in the first burglary were found.  The notebook computer stolen from the second burglary was recovered from D1’s home.

12.  The value of the notebook computer was approximately $5,250 and the value of property in Charge 1 amounted to approximately $26,000. 

13.  Mr Alex Ng and Mr David Ma counsels, have mitigated fully and thoroughly on behalf of the 1st and 2nd defendants respectively.

14.  I have taken into account their detailed and thorough mitigation.

15.  I have also taken into account the letter to which the 1st defendant has written to me.

16.  I turn first to deal with D1.

17.  He is 36 years of age and is single.  He is educated up to Primary 6.  He was a transportation worker earning approximately $12,000 a month immediately before his arrest.

18.  He has 14 previous convictions, two of which are similar:  One of them was committed in 1994 when he was 17 years of age and the other in 2003 when he was 26 years of age.  He has six convictions for dishonesty.

19.  D1 has indicated to me that he intends to turn anew.  He realises now that he has spent a lot of his youth and time in prison and that as his mother’s health is not good he wants to be there for her for her remaining years.  He intends to turn anew so that he can work and look after her. 

20.  The reasons, he says, for committing these burglary offences is that he had been unemployed for a few months prior to the commission of these offences and was looking for some quick cash.  He had incurred credit card debts and owed money to finance companies.  In addition he was also a drug dependent.

21.  Mr Ng has asked me to take into account the fact that the defendant has pleaded guilty and shown his remorse and has also assisted the police by providing D2’s name and address.

22.  I turn now to deal with D2.

23.  D2 is 33 years of age. He has seven previous convictions, one similar for a burglary which was committed in 1994.  As reflected from his criminal record, he is a drug dependent.  He has been sent to DATC on five previous occasions.

24.  He was a part-time construction site worker earning approximately $8,000 a month.  He is a divorced father and has a son aged 10.  He contributes about $3,000 a month to the son and ex-wife’s living. His father left when he was very young and he was brought up by his mother alone. 

25.  Turning now to the offences themselves, as is rightly said by Mr Ng and Mr Ma, these are domestic premises to which these burglaries were committed upon.  These burglaries took place over a period of nine days.  They were committed during the daytime.  The defendants had made sure that when they did commit the burglaries, that nobody was home at the time.  They would knock on the doors and make sure that when they burgled they would not alert or surprise anybody.

26.  Mr Ng had properly pointed out, the aggravating factors in this case is the fact that there were more than one burglary on one of the premises.  That is related to Charges 1 and 2.

27.  Furthermore, in respect of D2, he was a neighbour and lived in that block to which these premises were burgled.  There is nothing more distressing or pestering than having your own neighbour come and burgle your premises.  You are, in Mr Ng’s words, a pest in your own building.  Your pleas of guilty are your strongest mitigating factor.  They have shown your remorse.

28.  As you are well familiar, there are clear guidelines laid down for the offence of domestic burglary.  The usual starting point for domestic burglaries is that of 3 years’ imprisonment.

29.  Defendants, I take a global view of the burglary charges to which you have pleaded guilty to.  I have taken into account the principle of totality.

30.  Defendant 1, you have pleaded guilty to three charges:  two of burglary and one of attempted burglary. 

31.  Had I convicted you after trial, I would have taken a total term of imprisonment as a starting point of 4 years’ imprisonment. 

32.  Giving you credit for your plea of guilty, that term would be reduced to 2 years and 8 months.

33.  I will reduce that term further by 2 months for the assistance you provided to the police in informing them that the 2nd defendant was your co-culprit.

34.  That would make a total term of 2 years and 6 months’ imprisonment for these three burglaries.

35.  I now sentence you individually for each charge.

36.  For the three charges, I adopt a starting point 3 years imprisonment and such sentence to be reduced to 2 years’ imprisonment for each charge.

37.  3 months of Charges 2 and 3 are to run consecutive to Charge 1, making a total term of 2 years 6 months’ imprisonment.

38.  For D2, you have admitted to two burglary charges.  I once again look at the principle of totality and take a starting point of 3½ years had I convicted you after trial.

39.  Giving you credit for your plea of guilty, that term shall be reduced to 2 years and 4 months’ imprisonment.

40.  You did admit to or confess to the second charge without any evidence against you but for the fact that D1 had told the police.  I give you credit for that and reduce that term by 1 month for your confession.

41.  That means you will serve a total of 2 years and 3 months’ imprisonment.

42.  Like D1, you are sentenced to 2 years imprisonment on Charge 1 and Charge 2, but 3 months on Charge 2 is to run consecutive to Charge 1, making a total of 2 years 3 months’ imprisonment.