HKSAR v. NG MAN WAI

DCCC 69/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 69 OF 2016

-----------------

-----------------

-------------------------------------------

REASONS FOR SENTENCE

-------------------------------------------

1.  The Defendant pleaded guilty to one count of burglary, contrary to Sections 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

Summary of Facts

2.  The burgled premises herein are domestic premises.

3.  On 10 September, 2015, Ms. Alice Kwok, the tenant of an apartment located at 5^th floor, No. 90 Argyle Street, Mong Kok, Kowloon (the premises) left the premises at around 8.25 a.m. after securing all the doors, the iron gate and the windows.  Her brother, Arving Kwok, had moved out of the premises at the material time, but kept some of his properties there.  At the material time, the building where the premises were located was covered with scaffolding.  When she returned at about 6.45 p.m. that day, she found signs of ransacking inside the premises, including in the living room and the 3 bedrooms.  She found that the toilet window had been prized open, and the window grill damaged and discarded in the bathtub. She made a report to the police. She and her brother found that the property as set out in the particulars of the charge were missing, totally valued at $93,974.  The police successfully lifted a fingerprint from the surface of a drawer of the wooden TV cabinet in the living room, which was identified as being that of the Defendant’s right thumb.  Both Ms. Kwok and her brother did not know the Defendant and had not given him permission to enter the premises.  The TV cabinet had been in the premises since 1985 and Ms. Kwok cleaned the living room including the TV cabinet every week. The Defendant was arrested on 26 November, 2015 on his return at the Lo Wu Terminal. Movement records confirmed that he was in Hong Kong at the time of the burglary. He had entered the premises as a trespasser and stole the property as listed in the particulars of the charge.

4.  By his plea, the Defendant has admitted that he entered the premises as a trespasser and stole the items as set out in the particulars of the charge.  I was satisfied beyond all reasonable doubt that the facts supported the charge and  accordingly I convicted the Defendant on the charge.

Previous Convictions

5.  The Defendant’s criminal record dates back to 1994.  He has 30 previous convictions in 19 court appearances, including 9 for burglary and 12 others that are dishonesty related, his most recent conviction being on 12/02/2014 when he was sentenced to 5 months’ imprisonment for an offence of wounding or inflicting grievous bodily harm.  His last burglary conviction was on 15/06/2012 when he was sentenced to 3 years and 3 months’ imprisonment.     

Mitigation

6.  The Antecedent Statement was read into the record by the Prosecution – no issue was taken on the contents. It disclosed that the Defendant was born in Hong Kong and aged 39 years and educated to Form 1 in Hong Kong. Prior to his arrest he was transportation worker.  He is single and lived with his father and elder brother.

7.  Mr. Khosa for the Defendant submitted that the Defendant at the time of the offence was a lorry attendant on a casual basis, earning $400 a day, and about $6,000 a month.  He was unemployed at the time of the offence. He needed money.   He saw the scaffold around the building and thought to try his luck, and he was able to gain entry into the premises and steal the items as set out in the particulars of the charge.  He had sold the items and spent the money.  Restitution was unlikely. He stole to fund his drug addiction – his first conviction in 1994 was for possession of dangerous drugs, and there are drugs related offences on his criminal record.

8.  Mr. Khosa accepted that there was a well-settled sentencing guideline for burglary of domestic premises – the appropriate starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.

9.  Counsel submitted that there were no aggravating factors – the burglary was during the day and not in the small hours.  There was no one there – no one had been alarmed or disturbed, and no violence had been used.  The offence was not premeditated but rather it was opportunistic. The Defendant acted alone. It was not a sophisticated burglary.

10.  Mr. Khosa informed the Court that the Defendant had an outstanding matter in the Court of First Instance for an offence of trafficking in dangerous drugs, a quantity of about 500 grammes of ice.  Although he had no instructions to act for the Defendant, he had been told that it was the Defendant’s intention to plead guilty to the charge. The anticipated sentence was 12 to 18 years’ imprisonment.  The pre-trial review has been fixed on 8/9/2017 and the trial set for 28/11/2017.  He said he had been instructed to ask for sentence in this matter to be adjourned and dealt with by the Court of First instance together with his outstanding trafficking charge.  I did not accede to this request.  The offences are separate and distinct.  The Court of First Instance will certainly bear in mind the totality principle when it determines sentence.

Sentencing Considerations

11.  In the present case, I find there were no aggravating features in the commission of the offence in that the Defendant committed the offence alone. No one was in the premises at the material time and there was little possibility of confrontation with any occupier. However, the value of the stolen property cannot be described as small.  There was damage caused to gain entry into the premises. The toilet window had been prized open, and the window grill damaged and discarded in the bathtub. The premises were ransacked. I do not accept that the offence was opportunistic.  The Defendant selected a building that had a scaffold around it.  Tools must have been used to prize open the toilet window and damage the window grill.

12.  Save for his plea of guilty, there is really little mitigation of weight before me.  

13.  The Defendant is of full age and he is not a first offender – he has nine previous convictions of a similar nature.

14.  An immediate custodial sentence is the only appropriate sentence in the circumstances of the offence and the Defendant.   

15.  I have borne in mind all that has been urged upon me in mitigation on behalf of the Defendant. After considering the facts of the case and the mitigation put forward,  I would take as a starting point 3 years and 6 months’ imprisonment, discount this by one-third to reflect the Defendant’s plea, which in my view is the only mitigation of weight before me, and sentence the Defendant to 2 years and 4 months’ (28 months’) imprisonment.