HKSAR v. Koo Tsang Wing and Others

DCCC 657/2015

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 657 OF 2015

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Reasons for Sentence

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1.Both the 1st and the 2nd defendant admit jointly committing a burglary of a furniture shop in Sham Shui Po.

2.The facts are that on 21 April 2015, the defendants were caught red-handed inside the shop, having broken in hours earlier.  In fact, the police had information of the burglary, even who would commit the burglary.  The police set up observation around this shop, armed with four photographs of the target burglars.  Their information was excellent, because three out of the four photographs were accurate, and those three men were subsequently arrested by the police.

3.Both the 1st and 2nd defendant agree that about 4.40 in the morning they were both outside this shop.  The 2nd defendant had tried to open the metal box containing the switch that controlled the roller shutter.  They then left, and within the hour, they returned.  The 1st defendant then cut the padlock that was attached to the roller shutter, and both then approached the silver car nearby and retrieved a bag from its boot.

4.Half an hour later, the 2nd defendant hit the metal box or prised open the metal box that contained the switch.  That means the roller shutter could be opened.  Then later, the 1st, 2nd and the 3rd defendant appeared at the shop.  The 2nd defendant opened the roller shutter using the switch and put the bag inside the shop.  The 3rd defendant then closed the shutter again.  This time was at 6.30, the first time the 3rd defendant had been seen by any officers.

5.Twenty minutes later, all three appeared again. It was the 3rd defendant that opened the shutter, the 2nd defendant who went inside and retrieved his bag.  They all left again after the 3rd defendant shut the roller shutter.

6.Some 50 minutes later, all three appeared again, with the 1st defendant opening the shutter and the 1st and 2nd defendant going inside the shop.  The 3rd defendant was left outside.  He stood there and looked around. 

7.Within minutes the operation turned overt and the police moved in.  The 1st and 2nd defendants were arrested inside the shop.  The 3rd defendant took off down the street, but was subdued not long after.

8.At the time of the arrest the 1st and 2nd defendants were wearing surgical masks.  The 1st defendant was also wearing a cap, gloves, and was in possession of a torch. The 3rd defendant was wearing a bucket hat when he was arrested. 

There is CCTV footage recorded at 7.31 am where two men are seen entering and searching the premises.

9.After the 1st and 2nd defendants were arrested, they admitted the offence under caution.  The 1st defendant said he committed the offence as he needed money.  The 2nd defendant said the 1st defendant had recruited him to do it and he would get $50,000 as reward for helping him to move valuable incense wood.

10.The 3rd defendant, during the course of the trial, was proved to have said under caution he was acting as a lookout.

11.The owner of the shop confirmed that the metal box containing the switch for his shutter had been prised open.  He confirmed inside the shop a very valuable dining table and six chairs had been moved about.  This set was worth about $2 million.  The owner told the police that in fact his shop contained items worth up to $10 million.

12.Later, during a video-recorded interview, the 1st and 2nd defendants separately admitted that the shop had been targeted days before.  It had been visited to see what valuables were inside.  The 2nd defendant told the police he identified some valuable jade, incense wood, and a Zhisha teapot.  The 2nd defendant also told the police he knew that there was CCTV in the shop, but no alarm system.  There was an admission that they had brought tools in advance.  There was an admission that they cut the padlock and broke open the switch box.  They had opened the shutter a total of three times, but the first two times they noticed police around, became scared, so closed the shutter again.  The third time they opened it, they went in, and were arrested not long after.  They intended to sell these items in China and share the profit.

13.The police also seized mobile phones and ascertained that there were many calls between the 1st and the 3rd defendants’ mobiles from the hours of 1 am to the time of the arrest.  The 2nd defendant had also made a lot of calls to two other unknown numbers at about the same time.

14.The trial evidence showed that two vehicles were involved and that one man, driving a silver vehicle, had left the scene as soon as the operation turned overt. The other vehicle was a white 5-tonne heavy goods vehicle, apparently stolen. The only connection to this was the 3rd defendant had sat in it for a period of time before getting out.

15.The 1st and 2nd defendants have appalling criminal records.  The 1st defendant has 16 convictions over 13 court appearances.  His previous convictions include robbery, theft, handling stolen goods, and 8 convictions for burglary.

16.The 2nd defendant has 20 previous convictions over 16 court appearances.  His previous convictions include robbery, possession of firearms and ammunition, handling stolen goods, going equipped for stealing, one conviction for aggravated burglary, and 8 convictions for burglary.

17.I have heard mitigation put forward on behalf of the defendants.  The 1st defendant is 67 years old, the 2nd defendant, 56 years old.

18.The 1st defendant has said that he is ready to retire from a life of crime.  He wants to go to prison for the very last time.  He was financially desperate at the time when he committed the offence.  His wife is legally blind and needs his help. He also has two adult children who are working who he hopes will support him in the future.

19.The 2nd defendant, I am told, has no family or children, and is single.  He admits he is a heavy gambler, with debts.  He committed this offence because he needed the money for his debts and daily living.  He too wants to retire from a life of crime.

20.Both defence counsel stress on both their behalfs that ultimately the owner did not suffer any loss, nor was there any damage to any property inside.

21.Both defendants are well aware that a burglary of a shop would attract normally a starting point of 30 months where there are no aggravating or mitigating factors.  However, where the 1st and 2nd defendant are concerned, there are obvious aggravating factors.  It will not come as a surprise to the 1st and 2nd defendants, as they have in the past on several occasions had the starting point for burglary increased for several reasons.  Those reasons include their appalling criminal record and the fact they are repeat offenders; also, on occasions, the burglaries have included more than one perpetrator and significant planning, which increased the starting point.

22.It has also been said where premises contain items of high value and potentially significant loss to a victim, that can be an aggravating factor.

23.Here in this case there is evidence of forward planning.  The premises were identified in advance.  Tools were obtained to break in.  Vehicles seem to have been arranged, and there were at least four people involved.  The items from this shop, if stolen, were of significant value.  These are all factors that I consider aggravating.

24.In addition, I take into account both the 1st and 2nd defendants are recidivists. That is an aggravating factor.

25.The starting point is not increased because of the number of previous convictions, but because previous sentences have obviously had no deterrent effect, and the public should be protected from professional criminals.

26.1st and 2nd defendants, please stand up.  I took a starting point of 2 years and 6 months, but I increase that starting point by 6 months for both defendants’ recidivism, and a further 6 months for the other factors I have just identified.

27.Therefore, the starting point becomes one of 3 years and 6 months.

28.You both pleaded guilty; you are entitled to a discount of one-third.  After that discount is applied, both defendants, for this joint charge, are sentenced to 2 years and 4 months’ imprisonment.  Take a seat, please.

29.3rd defendant, please stand up.  I have heard mitigation put forward on your behalf:  47 years old; divorced; with children that live with your ex-wife. You too have previous criminal convictions.  You have 9 previous convictions obtained on six occasions.  However, you have no similar conviction to burglary.  Your last conviction was in 2009, and that related to dangerous drugs.  The conviction prior to that was in 1995, a significant time ago.

30.You have been convicted after trial of this offence.  You do not have the benefit of a discount given upon a plea.

31.I do not normally differentiate between the roles of any defendant even if one’s role is as a lookout, but the facts here are that the 1st and 2nd defendants were observed on numerous occasions before you were sighted.  There is no direct evidence that you knew of the preplanning undertaken by the other defendants. Moreover, your record is distinguishable from the other defendants’ records.

32.After consideration, I do not find there to be any mitigating or aggravating factors, so I will take the normal starting point for a burglary of a non-domestic premises, and that is one of 2 years and 6 months.  As you have been convicted after trial, there is no reason for me to reduce that starting point.

33.So for this offence, you are sentenced to 2 years and 6 months’ imprisonment.