HKSAR v. KONG KWOK CHUN AND ANOTHER

DCCC195/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 195 OF 2010

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Reasons for Sentence

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1.   The two accused were originally charged with 2 counts of burglary.  They had pleaded guilty to Charge 2 but not guilty to Charge 1.  The prosecution accepted their pleas and asked this court to have Charge 1 left on the court file on condition that both defendants admitted the facts and were convicted by this court.

2.   After the two defendants admitted the facts and were convicted of Charge 2, it was ordered by this court that Charge 1 be left on the court file and cannot be proceeded with without leave of the court.

3.   Charge 2 related to an offence of attempted burglary which concerned Houses 49 and 51 of Fairview Park in Yuen Long.  These two houses, each was a 2-storey house, were geographically built adjacent to each other.  At the material time, House No. 51 was under renovation.  At about 7.05 pm on 8 January 2010, PW1, who was a renovation worker working in House No. 51, having left the house after a day’s work, returned to the house intending to get some construction tools.

4.   On return, PW1 saw the two defendants leaving House No. 51 one after the other.  PW1 attempted to stop both defendants but was only able to stop the 1st defendant. Subsequently, the police were called.

5.   When the police arrived, they arrested and searched the 1st defendant.  Upon search, police found a pair of gloves and two torches in the pocket of D1’s overcoat. Under caution, the 1st defendant admitted that he intended to burgle House No. 49, which was next to House No. 51.  He further told the police that he was with an accomplice when committing the offence.  As they were unable to break into House No. 49, they had left without stealing anything.  D1 admitted that the gloves and the torches found on him were tools for the burglary.

6.   Meanwhile, D2, having fled from PW1, got into a taxi driven by PW2.  D2 was then carrying a rucksack containing a hydraulic cutter, a screwdriver, a tube cutter and a pair of gloves, which were apparently to be used as tools for the burglary.  D2 discarded the rucksack in a nullah in Fairview Park after he got into PW2’s taxi.  The taxi was subsequently stopped by the police and D2 was arrested. D2’s rucksack was later recovered from the nullah.

7.   Later the same evening, the owner of House 49, assisted by the police, discovered that there were signs of prising on the door of the balcony of the master bedroom floor.  The screen door and the glass window of the same bedroom were also found damaged.

8.   Both defendants have previous convictions prior to the commission of the present offence.  The 1st defendant has been brought before court and convicted of criminal offences on four previous occasions.  And on three of those occasions, he was convicted of burglary offences.  He was last convicted of attempted theft in December 2008, for which he was sentenced to 14 months’ imprisonment. His last conviction for burglary was in February 2004, when he was sentenced to 2 years, 4 months’ imprisonment.

9.   The 2nd defendant has been convicted on three previous occasions of various offences but he has no previous similar for burglary.  His last convictions were in November 2008, when he was convicted of charges involving unmanifested cargo and smuggling offences.  At the end, he was sentenced to a total sentence of 6 months’ imprisonment.

10.   I have heard both defendants’ counsel on their background.  Firstly, D1 is a 45-year old man and prior to his arrest for the present offence he had been a contract decoration worker in China.  He is married and has a 13-year old son.  I am told that since his arrest for the present offence, his wife had petitioned a divorce and was granted a decree nisi in relation to the petition.  His wife is now planning to immigrate to Denmark to stay with her sister.  The 1st defendant, through his counsel, submitted a letter stating that he is now very remorseful for his wrongdoing and asks for leniency from this court.

11.   Turning now to D2’s background, I am told that he has been married three times.  His elder daughter from the first marriage now lives with his 75-year old mother.  The mother is not enjoying good health, while the daughter has to cease schooling because of the fact that the 2nd defendant had lost his liberty and was therefore unable to support the family.  She is now working in a fast food shop earning $5,000 a month.

12.   The 2nd defendant’s second wife now lives with an 8‑year old son in China.  Although D2 is now separated from his second wife, he has to make irregular financial contributions to support the second wife and his son.  His present wife is now heavily pregnant and is due to give birth to their baby in one or two months’ time.  D2 handed up three letters written by himself, his wife and his nephew respectively, to ask for leniency from this court.

13.   Apart from general mitigation advanced, D1, through his counsel, asked this court to consider giving him extra discount by relying on the case of HKSAR v Hui Chi Tong, CACC414 of 2007.  In this case, Madam Barnes J, having concluded that the appellant’s conviction of one of the charges was the result of his own confession, without which the police would never have been able to detect such an offence, went on to say in paragraph 25 of the judgment:

“But for the voluntary confession, the appellant would not have been found guilty of the 1st charge. Such voluntary admission, coupled with a plea later, showed genuine remorse. It is in the public interest to encourage an offender to own up to his misdeed and to face the consequence. The most effective way of giving encouragement is to give a greater than normal discount upon a plea. In all the circumstances of this case, we are of the view that a further discount of 2 months is appropriate.”

14.   Miss Cheung, on behalf of the 1st defendant, argued that the 1st defendant in this case did exactly what the appellant in Hui’s case did, in that he voluntarily confessed to the police that he intended to burgle House No. 49.  Miss Cheung submitted that D1 was only found emerging from House No. 51 and therefore if he had not volunteered the confession to the police about his intention to burgle House No. 49, the offence committed against House 49 would never have been detected.

15.   I have carefully read the authority and considered Miss Cheung’s submissions.  I fully agree with the judgment given by the Court of Appeal in Hui’s case in giving extra discount for the appellant in the circumstances found by the Court of Appeal in that case, but I do not agree the present case can be looked at in the same light.

16.   I accept D1 made an admission to the police in relation to the offence committed against House No. 49 when he was physically found emerging from House No. 51.  But given the fact that the two houses were so close together, and the damage done to the bedroom windows and balcony door of House No. 49 was so obvious, it would only be a matter of time for the house owner of House 49 to become aware of the damage.

17.   Equally, I would expect the police to make their investigation not only confined to House No. 51.  It is apparent that there was nothing to steal from House No. 51, as it was under renovation at the time.  It is supported by the photographs submitted by the prosecution.  Therefore, I would reasonably expect the police to extend their investigation to the adjacent house, namely, House No. 49, and in the circumstances it would not be unrealistic to expect the police to discover the damage done to the bedroom window and the balcony door of House No. 49.  The police having found D1 in House No. 51 and discovered the damage done to House No. 49, it would not be too difficult for the police to link the presence of the 1st defendant to the damage.  Once they did that, it would be rather obvious that there was a very strong case, albeit a circumstantial one, against the 1st defendant in relation to the offence committed against House No. 49.

18.   I therefore conclude that D1 is not entitled to any extra discount for his confession.

19.   Having dealt with this part of the submission made by Miss Cheung on behalf of the 1st defendant, I then went on to consider the appropriate starting point that I need to take in respect of both accused.    In doing so, I bear in mind all the relevant circumstances and the mitigation advanced on their behalf by their counsel.

20.   While I may have sympathy for family members of both accused because the two accused look almost certain that they will lose their liberty for a substantial period of time, I do not think that the difficulty that their family members find themselves in could be taken as any real mitigation.  I take the view that both defendants, apart from their pleas of guilty, afforded this court with nothing that could warrant an extra discount.

21.   It is well established that for burglary committed on domestic premises the appropriate starting point is 3 years' imprisonment.  In relation to the 2nd defendant this is the starting point that I take.  But for D1, he is in a different position. He has 3 previous similar convictions for burglary.  He was sentenced to 2 years and 4 months' imprisonment in relation to his last conviction for burglary back in 2004.  I have been told that the sentence of 2 years and 4 months was the result of a plea of guilty.  It is not unreasonable for me to infer therefore that the starting point taken by the sentencing judge on that occasion was one of 3 years and 6 months.  In taking that starting point, my observation is that the judge must have taken this higher starting point because of the 1st defendant's poor criminal conviction history.  If it was indeed the real situation I would not hesitate to take an even higher starting point for the present case, but I am not entirely sure if this was right.

22.   I do not intend to adjourn this case for further investigation and I give the benefit of this doubt to the 1st defendant.  Having said that, I am still of the view that a higher starting point than the usual 3 years is called for in his case. 

23.   The present conviction is the 4th conviction for burglary as far as D1 is concerned.  It is quite obvious that 3 years is not going to deter him from committing a burglary offence.  I therefore take 3½ years as the starting point in D1's case.  The end result is this. In relation to Charge 2, D1 is convicted and sentenced to 28 months' imprisonment, which is arrived at after giving the 1st defendant one-third discount for his plea of guilty.  D2 is sentenced to 2 years' imprisonment after getting the one-third discount for his plea of guilty.