HKSAR v. CHAN YAN CHEUNG

DCCC765/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 765 OF 2010

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Reasons for Sentence

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1.  This morning, the defendant pleaded guilty to one charge of attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap. 210 and section 159G of the Crimes Ordinance, Cap.200.

2.  The Summary of Facts which was admitted by the defendant revealed that in the small hours of 25 May 2010, the defendant stood on the drainage pipe in a rear lane outside a restaurant in Sham Shui Po, Kowloon. At that time, he was carrying a rucksack and wearing a baseball cap, a pair of gloves and a mask. The defendant’s act was noticed by a patrolling constable who then shouted at him and demanded him to stop. However, the defendant ignored the warning, prized open the window and then entered the restaurant.

3.  About one and a half hour later, the defendant was seen climbing out of a window. When he jumped onto the ground and ran, the police gave chase and eventually arrested him.

4.  Under caution, the defendant admitted that he intended to steal money from the restaurant but did not succeed. It was also confirmed that the restaurant did not suffer any loss.

5.  Mr Kwok for the prosecution told the court that as it was not certain whether the defendant entered the restaurant still with the intent to steal or merely to escape from the police after having been discovered, so the charge of attempted burglary instead of burglary was laid.

6.  The defendant is now aged 34 and is single. He lived in a rented cubicle before his arrest. He was born in Hong Kong and was educated up to Form 3. He has 19 previous convictions including 4 burglary convictions, 2 robbery convictions, 5 theft convictions and 6 drug related convictions and a couple of other offences. He was last sentenced on 19 March 2007 for burglary and was released in April 2009. Yet, within a year’s time, he committed the present offence.

7.  In mitigation, it was said on behalf of the defendant that he feels sorry for what he has done and that as his parents are aged and sick, he is determined to turn over a new leaf so that he could take care of his parents before it is too late. Prior to his arrest, the defendant was receiving public assistance and disability allowance in the total sum of about HK$3,000. However, he said that was insufficient to support his living and he therefore resorted to committing the present offence. He is now remorseful and begs for a lenient sentence.

8.  It was said that the defendant had a viral infection of his heart, liver and lung after his discharge from prison and he is now very weak. His health condition has also caused him to quit his drug habit.

9.  Although no actual loss was caused to the restaurant, that is not the only factor which the court considers when passing sentence in respect of burglary offences. It is well established that for burglary of non-domestic premises, the tariff is one of 30 months. The defendant was equipped with the necessary implements at the time to break into the restaurant.

10.  The financial reason given for the commission of the offence is also no excuse. Insofar as his parents’ conditions are concerned, I note that, in mitigation, it was said that it is his elder brother who has been supporting his parents all along. In any event, the court has said time and again that a defendant should think long and hard before committing the offence and personal predicament is usually not a mitigating factor.

11.  In the present case, the starting point which I am going to adopt is one of 30 months’ imprisonment. There are no mitigating factors apart from the defendant’s plea and for that, I shall give him the usual reduction of one-third. He is therefore to serve a term of 20 months.