HKSAR v. Nguyen Cong Quy

DCCC 834/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 834 OF 2015

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Reasons for Sentence

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1.The defendant pleads guilty to one charge of burglary of non‑domestic premises.

2.The premises was a dried seafood warehouse located on the 16th floor of an industrial building in Kwai Chung.  A security system was installed with CCTV to detect any motion inside the warehouse.

3.In the early morning of 25 July 2015, the security device of the premises detected motion in the warehouse, and it automatically alerted the responsible person of the warehouse through his mobile phone by sending the CCTV images captured inside the warehouse.  The defendant was seen searching inside the warehouse.  The responsible person of the warehouse reported to the police and waited outside the warehouse.

4.Police officers later arrived and arrested the defendant in the vicinity when he was running away from the police.

5.Two screwdrivers were found outside the rear door of the warehouse.  The entire piece of glass on the flameproof door was prised off.  The repair cost was $5,000.

6.No loss was reported.

7.During cautioned interview with the police, the defendant said at the time of arrest he was drunk and got lost when he was trying to take a bus.  However, the arresting officer did not smell any alcohol on the defendant.

8.The defendant is a 51-year-old singleton who came to Hong Kong from Vietnam as a refugee in 1988.  He has a criminal record of 23 previous convictions, most of them being dishonest offences, and out of which 15 were convictions for burglary.  His last conviction for burglary was in October 2010.

9.In mitigation for the defendant, Mr Sit, solicitor for the defendant, tells the court that the defendant is working as a construction worker earning about $7,000 a month.  At the time of the offence, the defendant, not being completely drunk, was under the influence of heroin and alcohol which he took a few hours ago.  He became bold and trespassed the premises with intention to steal.

10.It is said that the defendant, having broken into the premises, changed his mind, and he left the premises empty‑handed when he could have easily taken away some of the dried seafood from the warehouse.  Mr Sit describes the defendant’s conduct as a random and silly operation.  He emphasises that the defendant was acting alone, no one was alarmed, and the owner of the warehouse suffered no loss except the damage of the rear door.  Mr Sit asks the court not to enhance the sentence because of his past history of criminal offences, as the last conviction was back in 2010, and the fact that the defendant stole nothing in this case.

11.It is well established that the appropriate starting point should be 2½ years’ imprisonment for a single offence of burglary of non‑domestic premises by a first offender of full age in circumstances unattended by either particular aggravation or particular mitigation.

12.I accept that the defendant was acting alone and the operation was not a well-planned or sophisticated one.  I find that whether the defendant was under the influence of alcohol or dangerous drugs from which he got courage to commit the offence is neither here nor there.  What is important, which is admitted, is that the defendant knew what he was doing, and he had a dishonest mind at the time of the offence.

13.In my judgment, it could not have been an ad hoc idea to steal when the defendant prised off the glass of the rear door of the warehouse located on the 16th floor of a building.

14.The appropriate starting point before any enhancement in the circumstances of the case, in my judgment, should be 2½ years’ imprisonment.

15.The defendant has an appalling record for burglary offences, the last one was in 2010 though.  I am satisfied that he defendant is a persistent offender.  In the interest of the community, the sentence should be enhanced by 3 months’ imprisonment to deter him from committing further offences.

16.In the result, I take 2 years and 9 months’ imprisonment as the starting point.  In my view, the fact that the defendant left the premises empty-handed is not a mitigating factor.

17.The only effective mitigating factor is his plea of guilty, for which he will get a one-third reduction of his sentence.

18.The defendant is therefore sentenced to 22 months’ imprisonment.