HKSAR v. Mok King Yuet

DCCC 561/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 561 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty to theone count of burglary, contrary to Sections 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

Summary of Facts

2.The burgled premises herein is a building known as No. 21 B1, Po Tong Ha Tsuen, Tuen Mun, New Territories (the ‘premises’). The premises was a two storey independent building which was unlocked, the windows were broken and it had been vacant for 30 years and was in a derelict condition. The premises was fenced, but the fence had a gap in a section at the back of the premises.

3.On 20 April, 2016 at around 6 p.m., Mr. Cheng Kwok-fung saw the Defendant push a trolley holding an air-conditioner out of the ground floor of the premises.  He knew the premises had been vacant for many years and therefore became suspicious.  He took a photo of the Defendant, and observed the Defendant for about 2 minutes until the Defendant had walked to the back of the premises and was out of sight. The police were alerted.

4.The Defendant was subsequently located and cautioned. Under caution, he admitted he had stolen the air-conditioner from the premises out of greed. He had walked through the gap in the fence of the premises, after making the existing hole bigger. He saw the air-conditioner and was taking it away using his trolley when he was spotted by Mr. Cheng. He therefore fled without taking the trolley or the air-conditioner. He was then arrested and cautioned again, and confessed to stealing two air-conditioners to earn some money for his daily expenses and asked for a chance.

5.I was satisfied beyond all reasonable doubt that the facts supported the charge and      accordingly I convicted the Defendant on the charge.

6.A photo album of 12 photographs was produced by agreement. These show the premises in question and the stolen air-conditioner.  Photo 1 depicts the main gate of the premises while photo 2 is a close-up shot of the stone column in photo 1,  showing the address of the premises.  Photo 3 is a photo of the entrance to the premises itself.  Photo 4 depicts the air-conditioner referred to in the particulars of the charge, on the trolley the Defendant was seen pushing at the premises.  Photo 5 and 6 are close-ups of photo 4.  Photo 7 depicts the hole in the fence through which the Defendant gained entry into the premises. Photo 8 depicts the sitting room of the premises and one can see the window from which the air-conditioner has been removed.  Photo 9 is a close-up of the window in question.  Photos 10 and 11 depict another room in the premises wherein the air-conditioner has been removed from the window, while photo 12 depicts the staircase leading to the 1^st floor of the premises.

Previous Convictions

7.The Defendant has 26 previous convictions in 23 court appearances, including 6 for theft and 1 for robbery and 1 for going equipped for stealing. He also has a number of dangerous drugs related offences.  His most recent conviction was for a dishonesty related offence, namely theft, on 25/4/2015 when he was sentenced to 6 weeks’ imprisonment. 

Mitigation

8.The Antecedent Statement was read into the record by the Prosecution – no issue was taken on the contents.  This disclosed that the Defendant was born in Hong Kong and aged 59 years and educated to Primary 5. He had mainly worked as a construction site worker in the past, and was a cleaner at the time of his arrest.  Counsel submitted that he earned $3,800 a month.  He had been addicted to heroin since 1981, but had recently quit.  He lived alone and had little contact with his mother and siblings.

9.Mr. Li for the Defendant submitted that the air-conditioner was quite an old one – the premises had been vacant for over 30 years – it would not have been worth much – a few hundred at most. The Defendant himself was a garbage collector and therefore aware that the property was vacant, although Counsel accepted that this was not an abandoned property as one can see from photo 8 which depicts the sitting room and the furniture therein – everything appeared dusty, but cannot be described as ‘abandoned’.  Mr. Li said that he had been informed that the owner had left Hong Kong for Holland many years ago. He submitted that the Defendant acted out of greed – he was remorseful as reflected by his plea.   He also submitted the authority of HKSAR v. Cheung To Ming, [2006] 2 HKLRD 259, a case involving a burglary of commercial premises,  wherein the Court adopted a lower starting point than the norm as the Defendant therein could be regarded as a ‘sneak thief’.

10.As Ms. Chan for the Prosecution submitted, that case can be distinguished from the present one as the door to the premises therein was ajar as others had broken into it earlier that night.  Here, the Defendant had to widen the gap in the fence surrounding the premises before he could gain entry into the courtyard of the premises.

Sentencing Considerations

11.There is a well settled sentencing guideline for burglary of domestic premises. According to the guideline, the starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.

12.In the present case, I find there were no aggravating features in the commission of the offence in that the value of the stolen property is not high and the Defendant committed the offence alone.The premises had been vacant for a long time and there was little possibility of confrontation with any occupier. But there was premeditation here – Counsel submitted that he was a garbage collector and aware that the premises were vacant. He had to enlarge the gap in the fence to gain entry.  He had gone to the premises with his gloves that he wore to dismantle the air-conditioner from the window. He had brought along his trolley to cart away the air-conditioner. 

13.I take the view that the imposition of the normal starting point of 3 years’ imprisonment for this kind of burglary would be somewhat harsh on the Defendant.  However, I do bear in mind that the offence here is one of ‘burglary’ and an immediate custodial sentence is the only appropriate sentence in the circumstances of the offence and the Defendant.   The tariff is not a ‘straightjacket’ and can be departed from in certain circumstances.

14.I have borne in mind all that has been urged upon me in mitigation on behalf of the Defendant as well as the authority that has been submitted. After considering the facts of the case, the mitigation, the item stolen (and I note that this was recovered), the photo album of the outside and inside of the premises, I am satisfied that a lower starting point would be appropriate.  I would take as a starting point 2 years and 3 months’ imprisonment, discount this by one-third to reflect the Defendant’s plea, which in my view is the only mitigation of weight before me, and sentence the Defendant to 1 ½ years’ (18 months’) imprisonment.