HKSAR v. CHOW KAM KI AND ANOTHER

DCCC955/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 955 OF 2011

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HKSAR
v.
Chow Kam-ki (D1)
Lee York-sing (D2)

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Before: Deputy District Judge Woodcock

Date: 12 December 2011 at 4.08 pm

Present: Mr James Tse, Counsel on fiat, for HKSAR
Mr Yip Kim-ming, Francis, instructed by Messrs Cheung & Liu, assigned by the Director of Legal Aid, for the 1st Defendant
Ms Money Lo, instructed by Messrs K H Yuen & David Cheung, assigned by the Director of Legal Aid, for the 2nd Defendant

Offence: Attempted burglary (企圖入屋犯法罪)

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Reasons for Sentence

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1. Both defendants have been committed after trial of one charge of attempted burglary.

2. I do not intend to repeat the facts. I gave full details of the evidence and facts in my verdict.

3. I was sure the defendants were caught red-handed trying to cut open the padlock or chain of Apartment B with tools very useful tocommit a burglary.

4. I am sure the 1st defendant was holding a tool whilst the 2nd defendant was acting as a lookout.

5. The 1st defendant does raise after mitigation, and contrary to his instructions to Mr Yip, he was under the influence of drugs anddid not know what he was doing. This was not the defence put forward during the course of the trial.

6. The 1st and 2nd defendant are not men of clear records. They have many previous convictions, mainly either offences of dishonestyor drugs.

7. It is well-established that a term of imprisonment is appropriate for burglary and normally a starting point of 3 years for a burglaryof a domestic premise is what the courts would take as a starting point.

8. Both defence counsel have asked this court to depart from that normal starting point on the ground that the apartments were obviouslyvacant and ready for demolition, but the new owner nonetheless still secured each premises under lock and chain. This lock and chainis a clear signal that the new owner did not give anyone permission to trespass within.

9. Moreover, this is not an opportunistic crime or scenario. There were tools taken to the premise for the purpose of cutting padlockand chain.

10. However, I do accept that there would have been no inhabitants inside the premises and I am sure that is a reason the defendantsattempted to break in.

11. I take into account that no one would have been confronted or frightened. So for that reason I will lower the normal starting pointof 3 years.

12. I say here that I do not distinguish the roles of either defendant. They are equally culpable.

13. The 1st defendant would like the court to consider medical or psychiatric reports at this stage. The 1st defendant says he hasbeen diagnosed with paranoid schizophrenia. There is a medical certificate supplied by the 1st defendant, dated 18 May 2011, confirmingthis diagnosis and detailing his medication prescribed.

14. The defendant not only would like report called for, he would prefer to be detained in Siu Lam Psychiatric Centre. However, I donot see a hospital order likely, nor do I see reports as necessary. The defendant has a diagnosis and has medication prescribedand the defendant can have psychiatric treatment, if required, in detention.

15. After mitigation and considering the facts of this case, I will take a starting point of 2 years and 6 months. I see no reasonfor any further discount.

16. The 1st and 2nd defendant are sentenced to 2 years and 6 months’ imprisonment. I add to the warrant the 1st defendant is to begiven psychiatric treatment if required.

A. J. Woodcock
Deputy District Judge

Please refer to CACC531/2011 for the relevant appeal(s) to the Court of Appeal.