HKSAR v. Chan Yee Lap

DCCC 513/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 513 OF 2015

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Reasons for Sentence

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1.In this case, Chan Yee-lap (D1) was charged with one count of “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. He was convicted upon his plea and admission of facts.

Facts

2.Some time in the evening of 23 March 2015, pursuant to an agreement to carry out a burglary, the defendants met up on the ground floor of the building where D1 lived.  Then they set out to find a suitable target.  They found one in Sai Yee Street in the form of a noodle restaurant.

3.D1 used the tools brought by him to break into the restaurant, while the other defendant acted as a lookout on the outside.

4.They took a safe containing cash HK$19,810, a receipt and a colander, a roll of adhesive tape, a basket containing cash of Hong Kong currency and some foreign currencies and four keys from the restaurant, then took a taxi back to D1’s flat in Sham Shui Po.

5.After several failed attempts to force open the safe with a screwdriver, the party took the safe to the rooftop above D1’s flat with the intention of breaking it open with a hammer.

6.He was intercepted by two police officers who happened to be on duty on the rooftop.  He was arrested immediately, while the other defendant made good his escape.

Sentence

7.The offence of burglary carries a maximum sentence of 14 years.

8.In the present case, it is a burglary of a non-domestic premises and the normal sentence, baring aggravating circumstances, is 30 months[1]. In my view, the following factors render the case more serious and justify the adoption of a higher starting point:

(i) Arguably, with two previous convictions of burglary, D1 was a professional burglar.

(ii) The present case is certainly not an opportunity crime.

(iii) The property stolen included a safe with a substantial amount of cash, and other cash almost up to HK$1,000.

(iv) The burglary was carried out with a certain degree of planning, and there were two persons involved[2].

9.In the case of D1, he had played a more active role in the burglary.  In the circumstances, I would adopt a starting point of 33 months, and reduce it to 22 by reason of his guilty plea.

Other Mitigating Factors

10.D1 is a mature man with multiple convictions.  He cannot expect extra clemency by reason of his background or age.  However, after he had pleaded guilty, he had offered to be a prosecution witness.  His evidence has been accepted by this court.  The court recognised D1’s assistance and would, as a matter of policy, offer incentive for such behaviour in the form of a lighter sentence.

11.Although there is no hard and fast rule on the reduction, Stock JA, on one occasion, explained that those who assist in the prosecution of others should hope for a discount of “something in the region of 40 per cent”[3].

12.For this reason, I would further reduce the defendant’s sentence to 11 months; a 50 per cent reduction rounded down to the nearest complete month.