HKSAR v CHAN WAI SANG

DCCC 1185/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1185 OF 2012

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to two charges of burglary of shops, contrary to section 11 of the Theft Ordinance, Chapter 210 (charges 1 & 2) and one charge of going equipped for stealing, contrary to section 27 of the Theft Ordinance (charge 3).

2.  In summary during the night of the 16th/17th September last year two adjacent shops in Kingswood Richly Plaza in Yuen Long were burgled.  From shop C92 a drawer was prized open and cash of about $1,600 was stolen.  Shop C93 was also burgled with about $180 being stolen from the cash register. 

3.  On the 3rd October at about 21:43 hours the police saw the defendant wandering on the footbridge at No. 30 Tin Wah Road in Yuen Long.  The police intercepted the defendant who was carrying two bags inside which was one crowbar, two screwdrivers, one torch, one pair of gloves and five skeleton keys.

4.  Under caution the defendant admitted he intended to use the tools to prize open vehicles in a car park so as to steal decoration tools.  Later when interviewed on video the defendant admitted using a screwdriver to prize open the main gates of both shops C92 and C93.  The money the defendant stole was all spent on drugs.   

5.  In passing sentence I have carefully considered everything said by Mr Lee on behalf of the defendant, including that he has elderly parents to care for and a daughter aged 10 who he supports.

Burglary

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.  (see Attorney General v Lui Kam Chi [1993] 1 HKC 215).

7.  The defendant is properly to be regarded as a persistent offender, having multiple convictions for offences of dishonesty, including nineteen for burglary, the last being in 2008 when he was sentenced in the District Court to a total of 44 months imprisonment for 12 burglaries and 8 months for possession of dangerous drugs.  The defendant was released from prison on the 10th September 2011. 

8.  In HKSAR v Chan Kwong Chun CACC299/2012 the appellant had eleven convictions for burglary and two for going equipped.  The Court of Appeal said the judge was perfectly entitled to come to the view the appellant was a professional burglar who was a menace to society and held that an increase of 12 months was perfectly reasonable.  I am satisfied in the circumstances of this case the starting point on each of the burglary charges is also to be increased by 12 months to 3 years and 6 months imprisonment. Giving the defendant full credit for his pleas of guilty reduces the sentences to 2 years and 4 months imprisonment.

Confession

9.  In Chan Kwong Chun the Court of Appeal said the judge was in error when he reduced the sentence by an additional two months “for making certain admissions”.  This was because the admissions added nothing to the plea of guilty, the defendant having been caught red-handed.  In the present case, however, Mr Wong concedes the prosecution would be unlikely to secure conviction on the burglary charges without the confession of the defendant. 

10.  In HKSAR v Tsang Kai On CACC 79/2010, a case of domestic burglary, the Court of Appeal held that a further reduction of 4 months imprisonment was appropriate where a conviction would not have been secured without the confession of the defendant.  Although in HKSAR v Ma Ming CACC 23/2012 the Court of Appeal said this factor does not support the argument defendants must be given a further discount over and above the one-third discount I am satisfied in the circumstances of this case an additional discount of 4 months imprisonment is warranted reducing the sentence on each charge to 2 years imprisonment.

Compensation

11.  The defendant has made full compensation resulting in no financial loss to the owners of the two shops.  I further reduce the sentence on each of the burglary charges by 2 months imprisonment thereby reducing the sentence on each charge to 1 year and 10 months.

Going equipped

12.  There are no guidelines for going equipped for stealing.  In The Queen v Tsang Wing Ming CACC 315/1989 the Court of Appeal held that whilst the nature of the equipment is a matter of consideration in a crime of this unusual and preventive nature, of more importance is the nature of the defendant.  I am satisfied the proper starting point after trial is 12 months imprisonment.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 8 months imprisonment. 

Totality

13.  Taking into account the two burglaries were committed at the same time I am satisfied concurrent sentences are appropriate for these two charges.  Going equipped for stealing is however entirely separate and distinct.  I am satisfied in respect of this charge a wholly consecutive sentence is appropriate.  The total sentence to be served by the defendant is therefore 2 years and 6 months imprisonment, which I am satisfied properly reflects the defendant’s criminality on the three charges.

Sentence

14.  In summary the defendant is convicted and sentenced as follows:

CHARGE 1 – 1 YEAR AND 10 MONTHS IMPRISONMENT;

CHARGE 2 – 1 YEAR AND 10 MONTHS IMPRISONMENT CONCURRENT TO CHARGE 1;

CHARGE 3 – 8 MONTHS IMPRISONMENT CONSECUTIVE TO CHARGES 1 & 2;

TOTAL SENTENCE TO BE SERVED IS 2 YEARS AND 6 MONTHS IMPRISONMENT.

15.  The defendant is also ordered to pay compensation in the sums of $1,600 to Tu Zhuangmin and $180 to Chan Huen Hung on charges 1 & 2 respectively, payment to be made from the monies paid into court.