HKSAR v. Poon Ho Yin

DCCC 337/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 337 OF 2016

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REASONS FOR SENTENCE

1.Poon Ho Yin you have pleaded guilty to one charge of attempted burglary, contrary to section 11 of the Theft Ordinance[1] and section 159G of the Crimes Ordinance[2].

2.In summary at about 6:50 p.m. on 18 February this year when Mr Leung went to visit his girlfriend who was living on the 5^th Floor of No. 308, Un Chau Street he saw you using a screwdriver to prize open the lock of a flat on the 4^th floor.  Mr Leung alerted the police who arrested you a few minutes later.  The police found a spanner and a chisel in your jacket and a screwdriver, a clamp, a cutting knife and a pair of gloves in your bag. 

3.Under caution and in a subsequent video interview you told the police that you had no money and no place to stay therefore you used the chisel and spanner to prize open the door of a vacant flat to see if you could find anything valuable.    

Mitigation

4.In passing sentence I have carefully considered everything said on your behalf by Mr Lau as particularised in his written skeleton submission and orally in court together with your mitigation letter.   

5.The correct starting point for a single burglary of residential premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years imprisonment. 

6.Mr Lau submits because the flat was unoccupied no one was alarmed or surprised[3].  The building was largely unoccupied and in the process of being acquired by the Urban Renewal Authority.  The flat you attempted to break in was vacant and had already been acquired by the Urban Renewal Authority. 

7.I have been shown photographs of the outside of the flat.  Miss Yip informs the court that the Urban Renewal Authority told the police there was nothing valuable inside the flat.  In the course of the investigation the police however did not enter the flat to see if there was anything inside and therefore there are no photographs of the inside of the flat.  The flat was however secured requiring you to use tools to try prize open the metal gate. 

8.Lower starting points have been taken where the premises are not occupied and the burglary described as opportunistic.  In HKSAR v Chau Man Ying[4] the appellant was sentenced to 2 years after trial for burglary of a flat in a vacant residential building awaiting redevelopment.  Considering the premises were almost derelict and the value of the property stolen was very low the Court of Appeal substituted a sentence which enabled the appellant’s immediate release[5]. 

9.In HKSAR v Lee Chiu Yui [6]the Court of Appeal held where the burglar had with him an array of housebreaking tools when burgling a temporary office which was cleared out with all properties removed and was ready to be demolished the appropriate sentence after trial was 2 years imprisonment[7].

10.You were carrying tools [8]with you at the time of the burglary.  Although unemployed at the time Mr Lau explains these were the tools you used in your work and that you were carrying them with you because at the time you had nowhere to live.  The fact you tried to gain entry to the flat using these tools I am satisfied the appropriate starting point for burglary of this unoccupied flat is 2 years imprisonment.  I am further satisfied the starting point is not to be reduced by reason of the fact that you were arrested before succeeding in breaking into the flat and was therefore unable to steal anything.

11.The starting point can be adjusted upwards if there are aggravating features[9].  You have nine convictions including four for theft but none for burglary.  The first five offences were committed in 2008 when you were a teenager.  You managed to stay out of trouble for five years until you were next convicted of shoplifting in September 2013.  Since that time you have committed two further offences of dishonesty and one of assault.

12.Your last conviction was for shoplifting to which you received a sentence of 2 months imprisonment on 24 February this year.  That offence was committed on 2 February after which you were given bail.    Whilst on bail you committed the burglary.  

13.The commission of offences on bail is an aggravating feature of sentence.  In the circumstances I am satisfied the starting point is to be increased by 3 months to 2 years and 3 months imprisonment. Giving you full credit for your plea of guilty you are convicted and sentenced to 1 year and 6 months imprisonment. 

[1] Cap 210.

[2] Cap 200.

[3] See §5(d) of Mr Lau’s skeleton submission.

[4] CACC 439/2011.

[5] he appellant had been in custody since his arrest which was almost 12 months. 

[6] CACC 24/2014.

[7] The Court of Appeal at §10 referred to the judgment in HKSAR v Shea Pat Chi CACC 196/2012 (Chinese judgment) where the Court of Appeal upheld a 2 year sentence for burglary of vacant domestic premises where valuable property was unlikely to be found.

[8] Photographs of the tools were produced and the chisel and spanner shown to the court. 

[9] See HKSAR v Cheng Wai Kai CACC 338/2007.