HKSAR v. CHAN KAI SUM AND OTHERS

DCCC 1016/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1016 OF 2013

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REASONS FOR SENTENCE

1.  The defendants plead guilty to one charge of burglary of domestic premises, contrary to section 11 of the Theft Ordinance, Chapter 210. D2 has also pleaded guilty to a charge of resisting a police officer in the execution of his duty, contrary to section 63 of the Police Force Ordinance, Chapter 232.

2.  In the afternoon of the 9 July last year the three defendants burgled the home of Madam Chan Mei Fong.  Full particulars of the burglary are set out in the summary of facts admitted by the defendants.

3.  In summary Madam Chan returned home in the evening of the 9 July to find the iron grille and main door had been prized open and her flat ransacked.  Various items had been stolen including jewellery, watches, handbags, bank cards and cheque books.  I am told the value of the items stolen was about $14,000.

4.  That afternoon the police had been carrying out an anti-burglary operation during which they saw the three defendants between 2:07 and 2:10 enter the building where Madam Chan lived.  CCTV cameras also captured the three defendants entering and leaving the lift of the building at various floors.

5.  About 50 minutes later the three defendants left the building within five minutes of each other.  The police intercepted the defendants.  D1 was carrying a bag in which all the property stolen in the burglary was recovered together with four gloves. 

6.  When the police revealed their identity to D2 and PC 8136 declared arrest D2 used his right hand to push the police officer away.  The police warned D2 not to resist but he continued to struggle.  Eventually the police were able to subdue D2.

7.  The police found two crowbars in a grey bag carried by D2 and screwdrivers and gloves in his waist bag.  Forensic evidence showed that fragments of the blue paint coating the crowbars were found on the door jamb of the iron grille and door handle of the main door of Madam Chan’s home.  Further fragments of the same blue paint were also found on the gloves recovered from D1and D2 and the clothing of D2 and D3. 

8.  In passing sentence I have carefully considered everything said on behalf of the defendants by Mr Chan, Mr Davies and Mr Chu together with the letter written by D1. 

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

10.  In my view there are aggravating features justifying an increase in the starting point.  These are the commission of the offence by two or more persons and the offender has previous convictions(see HKSAR v Cheng Wai Kai CACC 338/2007). 

11.  None of the defendants can be said to be first offenders.  Although they have no previous convictions for burglary they all have convictions for offences of dishonesty.  Whilst D3 has only two previous convictions for offences of dishonesty it is to be noted that he was released from prison for offences of violence less than two months prior to the commission of the burglary.  In my view the defendants are all persistent offenders. 

12.  Taking into account these two aggravating features I am satisfied that the starting point of 3 years should be increased by 6 months to 3 years and 6 months imprisonment.  Giving the defendants full credit for their pleas of guilty reduces the sentence to 2 years and 4 months imprisonment.

Compensation

13.  On Monday the prosecution applied for a compensation order to be made in the sum of $5,700 being the amount paid by Madam Chan for the repair of the iron grille and main door.  I was told that each of the defendants with the help of family and friends were willing to pay this sum equally between them.  Before passing sentence today I am told payment has been made by all three defendants. 

14.  All counsel previously submitted that further discount should be given by reason of this payment so as to encourage others to make restitution to victims of crime.  In the circumstances I reduce the sentence to 2 years and 3 months and 15 days imprisonment.  The defendants are convicted and sentenced to 2 years and 3 months and 15 days imprisonment. 

Resisting a police officer in the execution of his duty

15.  I accept the submission of Mr Davies that the resisting consisting of a push and a struggle in which only D2 appears to have been injured is relatively minor.  Nevertheless those who resist police officers in an attempt to evade arrest can expect to receive a short prison sentence.  In the circumstances I am satisfied the proper starting point after trial is 3 weeks imprisonment.  Giving D2 full credit for his plea of guilty he is convicted and sentenced to 14 days imprisonment.  This offence is separate and distinct from the burglary for which a consecutive sentence is appropriate.  D2 will therefore serve a total sentence of 2 years and 3 months and 29 days imprisonment.