HKSAR v. Yu Wai Tung

DCCC 627/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 627 OF 2016

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.The defendant pleads guilty to one charge of burglary of domestic premises (Charge 1). On the prosecution’s application, Charge 2 that the defendant is also facing is left on the court file, not to be proceeded with without the leave of the court.

2.The premises in this case is a public estate unit in Kwai Shing.  At around 12.05 pm on 21 May 2016, Mr Ng, the owner of the premises, closed the wooden door and the gate of the premises without locking them and left the premises.  At around 1.30 pm on the same day, Mr Ng returned and found the defendant inside the premises.  He tried to intercept the defendant and yelled aloud for help.  Eventually, the defendant successfully escaped. 

3.Upon checking, Mr Ng found that there were signs of ransacking of a cabinet drawer.  About RMB600 was missing from the drawer. A report was then made to the police.

4.On 23 May 2016, the defendant was arrested and cautioned.  In a video-recorded interview, the defendant admitted the offence. He also stated that he had rung the doorbell of the premises to ensure there was no one inside before he entered the premises.  He took some cash.  When he was about to ransack the rest of the premises, the house owner returned to the premises.  The defendant struggled with him for about one to two minutes.

5.The defendant is a 53-year-old singleton.  He has a long history of criminal convictions, including 12 offences of burglaries and attempted burglaries.  I have drawn to the attention of Mr Lai, solicitor for the defendant, that the court might enhance the sentence for the defendant’s repeated commission of the offence.

6.In his written submission of mitigation, Mr Lai tells the court that the defendant used to work as a lorry attendant earning about $12,000 a month.  However, he became unemployed in April this year and therefore encountered financial difficulties.  As a result, he consumed drugs to try to escape from reality.  On the date of the offence, he went to visit a friend who lived on the 36th floor of the building where the premises was situated.  He could not find his friend.  He then took the stairs to walk down.  He pushed the iron gates of the units and found out that the premises was unlocked.  Out of momentary greed, he went inside and stole RMB600.  Admittedly, he had struggled with the owner of the premises for 20 seconds before he managed to flee. 

7.It is said in the written submission of Mr Lai that there was no aggravating feature in the offence.  After the defendant was arrested, he was co-operative.  He is also now willing to return to the victim RMB600 from the money seized from him when he was arrested. 

8.The conventional 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.

9.In my judgment, there are aggravating features in this case.  The defendant is a persistent offender.  The premises was ransacked.  As the defendant admitted, he had struggled with the owner of the premises for some time.  The owner of the premises must have been frightened. On all these aggravating features, the usual starting point should be enhanced to 3 and a half years’ imprisonment.

10.The financial difficulties of the defendant cannot be a mitigating factor.  The voluntary return of RMB600 to the victim can count for nothing in mitigation.  The only effective mitigating factor is the defendant’s plea of guilty, for which he will get a one-third reduction of his sentence. 

11.The defendant is therefore sentenced to 28 months’ imprisonment.