A A
DCCC 427/2019
B [2019] HKDC 1499 B
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 427 OF 2019 D
____________
E HKSAR E
v
F F
CHAN KING FAN
G
____________ G
Before: HH Judge Dufton
H H
Date: 4 November 2019
I
Present: Mr Danny Ng, counsel on fiat, for HKSAR I
Ms Cherry Hui instructed by Herman H.M. Hui & Co,
assigned by the Director of Legal Aid, for the defendant
J J
Offences: (1) & (2) Burglary
(入屋犯法罪)
K K
(3) Possession of an offensive weapon in a public place
(在公眾地方管有攻擊性武器)
L L
(4) Possession of apparatus fit and intended for the inhalation
of a dangerous drug
M (管有適合於及擬用作吸食危險藥物的器具) M
N N
REASONS FOR SENTENCE
O O
1. The defendant pleads guilty to two charges of burglary,
P
contrary to section 11 of the Theft Ordinance1 (charges 1 & 2); one charge P
of possession of an offensive weapon in a public place, contrary to section
Q Q
33 of the Public Order Ordinance2 (charge 3) and one charge of possession
R of apparatus fit and intended for the inhalation of ice, contrary to section 36 R
3
of the Dangerous Drugs Ordinance (charge 4) .
S S
1
Cap 210.
T T
2
Cap 245.
3
Cap 134.
U U
V V
-2-
A A
2. Full particulars of the offences are set out in the facts admitted
B B
by the defendant today.
C C
Charge 1
D D
3. In the evening of 23 November last year Mr Leung the
E E
manager of Gold Garden Kitchen restaurant in Ma On Shan locked the
F drawer of the cashier containing about $10,000 and locked the door of the F
restaurant.
G G
H 4. The next morning at about 10:30 a.m. Mr Leung returned to H
the restaurant and found the drawer of the cashier was open and the cash
I I
missing.
J J
5. CCTV footage showed that at about 4:04 a.m. on 24
K November a male had forcibly opened the front door of the restaurant, K
prized open the drawer of the cashier and stole the cash box containing the
L L
cash.
M M
6. Upon reviewing the CCTV footage, the police were able to
N N
identify the defendant as the culprit.
O O
Charge 2
P P
7. At about 7:00 p.m. on 25 November 2018 Mr Wat was
Q Q
working as a street promoter of a telecommunication company near the
R carpark at Ginza Plaza in Mongkok when he saw a male enter the cashier R
post of the carpark. Mr Wat who regularly worked in that area did not
S S
recognise the male as a staff member of the carpark and therefore made a
T report to the police. T
U U
V V
-3-
A A
8. CCTV footage showed that the male first loitered in the
B B
carpark and then picked up a towel and prized open the cashier post and
C tried to prize open the cashier. C
D D
9. Mr Wong, a security guard working at the carpark confirmed
E the cashier post had been locked at about 2:10 p.m. that day and that when E
he returned to the cashier post he found the cashier had been damaged but
F F
nothing was stolen. The cashier cost about $5,000 to repair.
G G
10. The police lifted the defendant’s fingerprint from the window
H pane of the cashier post. H
I I
Arrest
J J
11. In the early hours of 3 December last year the police mounted
K an arrest operation. At about 3:00 a.m. PC 7470, who was in plainclothes, K
found the defendant returning to his residence together with his friend.
L L
When the defendant and his friend entered the lift and before the lift door
M M
closed PC 7470 and another police officer in plainclothes approached and
N
disclosed their identities. At the time the defendant was facing the police N
officers and holding in his left hand a paper cutter with the blade exposed.
O O
The defendant did not wave the cutter at the police officers and did not
P resist arrest (charge 3). P
Q 12. Upon search of the defendant’s shoulder bag the police found Q
apparatus fit for smoking dangerous drugs (charge 4).
R R
S 13. The defendant was arrested. Under caution and in subsequent S
video recorded interviews the defendant admitted, inter alia, the first
T T
burglary; that he was the person seen in screen captures taken from the
U U
V V
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A A
CCTV footage of the cashier post; the ownership of the cutter which he had
B B
kept in his bag and that the apparatus belonged to him and was used for
C smoking ice. C
D D
14. The police also conducted a house search and found clothes
E worn by the defendant when committing the burglaries. E
F Mitigation F
G G
15. In passing sentence, I have carefully considered the oral and
H written submissions of Ms Hui, including that the defendant has suffered H
from psychiatric illness since 1998 and has been diagnosed with substance
I I
induced psychotic disorder for which he has been hospitalized on multiple
J occasions4. J
K 16. I also take into account that whilst serving sentence the K
defendant is willing to receive counselling services from The Hong Kong
L L
Christian Kun Sun Association Ltd and that the social worker Mr Leung
M M
Kwok Ki has attended court to support the defendant.
N N
Starting point
O O
Burglary
P P
17. The correct starting point for a single burglary of non-domestic
Q Q
premises committed by a first offender of full age where there are no
R aggravating or mitigating features is 2 years and 6 months’ imprisonment. R
S S
T T
4
See §10 of the written mitigation of the defendant together with the medical report submitted by the
defence.
U U
V V
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A A
18. Although the defendant has a long criminal record taking into
B B
account his last conviction for an offence of dishonesty was in 2011, I do
C not enhance the starting point by reason of his persistent offending. C
D D
19. Giving the defendant full credit for his pleas of guilty reduces
E the sentence on charge 1 and charge 2 to 1 year and 8 months’ E
imprisonment.
F F
Possession of an offensive weapon in a public place
G G
H 20. There are no guideline sentences, the length of sentence H
depending on the facts of each case. Section 33(2)(d) of the Ordinance
I I
provides that a person convicted of an offence who is of the age of 25 years
J or more shall be sentenced to imprisonment for not more than 3 years. J
K 21. The defendant told the police the cutter was for self-defence. K
Ms Hui informs the court that the defendant carried the cutter because he
L L
was attacked in June 2015 and feared he may be attacked again. When the
M M
police approached he did not know who they were and took the cutter out
N
of his bag. After the police revealed their identity and asked him to N
surrender the cutter he handed the cutter to the police.
O O
22. I am satisfied the defendant did not have lawful authority or
P P
reasonable excuse for possession of the cutter.
Q Q
23. A cutter is capable of causing serious harm. Taking into
R R
account all the circumstances including that the defendant possessed the
S cutter in the early hours of the morning and did not use the cutter to S
threaten the police officers or resist arrest, I am satisfied the proper starting
T T
U U
V V
-6-
A A
point after trial is 9 months’ imprisonment. Giving the defendant full credit
B B
for his plea of guilty reduces the sentence to 6 months’ imprisonment.
C C
Possession of apparatus fit and intended for inhalation of ice
D D
24. For possession of apparatus fit and intended for inhalation of
E E
ice I am satisfied a starting point of 3 months’ imprisonment is appropriate.
F Giving the defendant full credit for his plea of guilty reduces the sentence F
to 2 months’ imprisonment.
G G
H Totality H
I 25. Where burglary offences are committed in different premises I
against different victims on different dates consecutive sentences should be
J J
imposed.
K K
26. Taking into account the two burglaries were one day apart;
L L
nothing was stolen in the second burglary; the possession of the cutter and
M the apparatus are entirely separate and distinct offences, I am satisfied a M
total sentence of 2 years and 10 months’ imprisonment properly reflects the
N N
defendant’s criminality on the four charges and takes into account the
O defendant’s personal circumstances and the seriousness of the offences5. O
P P
Sentence
Q Q
27. The defendant is convicted and sentenced as follows:
R R
Charge 1 – 1 year and 8 months’ imprisonment;
S S
T T
5
See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 and HKSAR v Pau King Kong [2013] 3
HKLRD 676.
U U
V V
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A A
Charge 2 – 1 year and 8 months’ imprisonment with 8 months consecutive
B B
and 12 months concurrent to charge 1;
C C
Charge 3 – 6 months’ imprisonment with 4 months consecutive and 2
D D
months concurrent to charges 1 & 2; and
E E
Charge 4 – 2 months’ imprisonment consecutive to charges 1, 2 & 3.
F F
The total sentence to be served by the defendant is 2 years and
G G
10 months’ imprisonment.
H H
I I
J J
(D. J. DUFTON)
K District Judge K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V