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DCCC 737/2010
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 737 OF 2010
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HKSAR |
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v. |
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SHEK HUNG |
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| Before : |
H.H. Judge E. Yip |
| Date : |
13 August 2010 at 12:04 p.m. |
| Present: |
Mr. Andrew Li, Public Prosecutor, of the Department of Justice, for HKSAR.
Mr. Chan Wing Bor, of M/s. Rowland Chow, Chan & Co. assigned by DLA for Defendant. |
| Offence: |
Attempted burglary (企圖入屋犯法罪) |
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Reasons for Sentence
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Charge and facts
1. The defendant pleads guilty to a charge of attempted burglary of a domestic flat situated on the 10th floor of a block in Whampoa Garden. At around 10:10 p.m. on 29 May 2010, Madam So together with her mother, her son and her maid were on the way home after dinner. The Defendant had met them in the shopping mall on the way home. She had also noticed him ever since then. He followed them into the lift and up to the 10th floor. She felt scared. When the lift reached the 10th floor, she immediately opened the door of her flat to enter. He tried to follow them into the flat but was stopped by her brother-in-law, Li. It just so happened that earlier on, Li had gone up to look for her but in vain. He had been waiting at the 10th floor lift lobby for her to be back when he saw the Defendant trying to follow them into the flat.
2. He ignored Li and tried to enter. Li stopped him again. He claimed that he intended to enter to look for his friend. Li would not let him enter. He took the lift down to the ground floor of the block. Li followed him to the security post at the ground floor and reported the case to the security guard. Upon enquiry by the security guard he claimed to be a decoration worker. Li reported to the police.
3. Under caution at scene he admitted to the police that he was in need of money to buy drugs for injection and he thus followed the group into the flat to look for valuables to steal.
Personal background and mitigation
4. He is now 44 years of age. He was educated up to F. 1 level and then took up part-time or casual unskilled jobs. He has a string of conviction records the majority of which were drug-related. He has 2 theft records but nothing related to burglary. On the date of the present offence, he was still within the operation period of a suspended sentence for assault occasioning actual bodily harm (KC/1490/09). His solicitor asks me not to activate it or only activate part of it because firstly the present offence took place only 3 months before the expiry of the suspended sentence and secondly that was for the different offence of assault. I am aware that he has been given suspended sentences in 1988 and 1997. He was in breach of them and ordered to serve the term in full (TW/1854/89 and TW/778/97).
Sentencing principles
5. In R v CHAN Yui Man, Cr App 36/1988, the Court of Appeal held that in burglary of domestic premises, 3 years was the proper starting point for a first offender of full age. This was followed in R v Chan Wing Ching Cr App 100/1991, R v Luk Wai Kit Cr App 99/1992, and R v Wong Man Cr App 372/1992.
6. Suspended sentences have to be activated unless there are exceptional circumstances not to do so. Such circumstances will rarely occur (Li Kim-wai v R [1980] HKLR 833, at 834, per Huggins JA).
Sentencing this Defendant
7. The Defendant had followed the group from the shopping mall to the flat. It was an attempt which did not materialize only because LI was firm enough to stop his repeated attempts to enter. He had no will to desist until it was obvious that he could never make it. The sentencing guideline is applicable. I take 3 years as the starting point. I give credit to his plea of guilty. There are no other mitigating factors. The sentence is 2 years’ imprisonment.
8. There are no exceptional circumstances not to activate the suspended sentence or its entire term of 2 months. I so order now. The 2 months shall be consecutive to the present term.
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