HKSAR v. HUI CHUN HUNG

 DCCC121/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 121 OF 2010

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Reasons for Sentence

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1.  Your counsel has rightly pointed out to me, and according to him, he has rightly pointed out to you, there are quite stringent guidelines, very strict, in respect of burglary cases. The starting point is 3 years upwards for domestic premises and the subject premises in this case is no doubt domestic premises.

2.  According to the authorities, it has been mentioned that the starting point may have been increased by a number of factors, for example, when committed by persistent offender. I have doubt of the simple application of this observation that a starting point can be increased because the defendant is a persistent offender.

3.  A simple application of this observation will cause injustice in the mind of the defendant and in the mind of the public. It would appear that the defendant were to be punished again for the past crimes for which he has already been punished by serving a sentence. Past record will only take away or weaken mitigation the defendant otherwise would have.

4.  In your case you committed a number of petty theft, if I may say so, which to a great extent it resembled the modus operandi in this case. To put it in one way as your counsel has said, it is a momentary greed. In another way, you are an opportunist seizing any moment to commit a crime to benefit yourself.

5.  In any event your past record may take away your mitigating factor which you may otherwise have if you have a good record. And I do not think your past record should increase the starting point for this offence. I disagree with counsel that the starting point should be 3 years. I do not think the starting point should be 3 years.

6.  The guidelines are not straitjackets as the Court of Appeal has said time and again. In the particular case in which this guideline is laid down, in the case helpfully cited by your counsel, HKSAR v Ng Wai Hing, a hotel room was the subject premises. The practical approach of the Court of Appeal is not to classify the hotel room into domestic premises or commercial premises, otherwise we will have a lot of academic discussion without being very helpful for the sentencing judge.

7.  To use one example, the Court of Appeal has said, “Well, it depends on the skill of a burglar. Apparently, you are a very skilful cat burglar, climbing up a skyscraper to break into commercial premises, you can expect that you will be dealt with quite severely.“ But the discussion there is not exhaustive. I will suggest that the degree of privacy, the care the owner has taken to secure the premises should also be taken into account. If you broke into the vault of a very famous bank in Hong Kong -- in Central district, you cannot tell the judge, “Well, the starting point is only 2 years.” The starting point I can guarantee you will be very, very high.

8.  I mention this point of privacy because the privacy this victim values is not as much as an ordinary person would do. He leaves his door open, of course it does not mean that he deserved to be burgled into. But that is a factor I would take into account. And of course the most important point is the element of surprise and the risk of causing danger to the victim when the burglar was confronted in the course of committing the burglary. That makes the burglary a serious offence. That makes the Court of Appeal laid down the guideline of a starting point of 3 years.

9.  I can conveniently read what was held in that case, page 338, the rationale for the 3-year starting point.

“Burglary was a serious offence and burglary of domestic premises was even more serious as there was always the possibility of confrontation with the occupant who would be subject to extreme fright when a total stranger invaded his privacy.  The gravamen of fear felt by victims that a thief should have invaded their own house, that was why burglary of premises which were expected to be occupied was an aggravating factor.”

10.  And if I may add, it should be common experience that even without confrontation, even if the owner found out later that his premises had been burgled into, they would be still subject to fear because they would certainly have imagined, if the burglary took place while they were inside, while they were sleeping the fear which would have caused. But the elements for this 3-year starting point are absent in this case. You and the victim are no strangers. He, as the evidence showed, was not afraid at all of confronting you.

11.  And you, I give you the benefit of the doubt, you knew it, so it is not the case you get lucky that you get caught by a victim who so happened not to be afraid of you. You knew your victim, you must have known that he was not afraid of you, you can only make use of the opportunity while he was absent in the bathroom. So the elements -- the reason for this 3-year sentence are absent here. You are entitled to a lower starting point than 3 years.

12.  Because of the factor I have just mentioned and because mainly that you did not cause fear and you knew it. You did not run the risk of causing the victim any fear of confronting you and the fact that the victim leaves his door open, did not guard his room, did not value his privacy as a reasonable man would have done, I think the starting point should be 2 years. And I do not think you have any mitigating factors. I do not accept it is a momentary greed because the evidence is equally consistent; you are waiting for your opportunity.

13.  The only mitigating factor is that you pleaded guilty, so you are entitled to one-third. For this one-third, you do not have to thank me. The Court of Appeal said even the evidence is the strongest, the fact that you pleaded guilty entitles you to one-third. So simple arithmetic will give the figure of 16 months. I will sentence you to 16 months’ imprisonment.