HKSAR v. Chan Yuen Shing (also known as Chan Kwong Chun) and Another

DCCC 203/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 203 OF 2016

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Reasons for Sentence

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1.The defendants pleaded guilty to one joint charge of burglary[1] of a non-domestic premises. Particulars are that they on 13 January 2016 entered Tak Fung Medicine Company as trespassers and stole therein some Chinese dried goods and cash of $879.60.

Summary of facts

2.Tak Fung sells dried goods such as abalone, scallops as well as Chinese medicines.

3.After securing the premises and activating the alarm and closed circuit television systems, one of the shop owners Ms. Lam left the shop at around 8pm on 12 January 2016.

4.Later investigation revealed that the defendants had entered the shop on 13 January through a 1 foot by 1 foot hole in the wall behind the shop facing a rear alley. Once inside, they severed the alarm system cables and unplugged the closed circuit television cameras.

5.The defendant filled 2 rucksacks and 3 plastic bags with dried goods stolen from the shop. All but one plastic bag were left in the rear alley behind the shop. The one plastic bag was found sitting between the defendants on the taxi that they were intercepted in later on.

6.The defendants first appeared near the rear alley at 2:15am on 13 January. They came back out at 2:45am, returned at 2:58am. They re-emerged at 5:05am and got on to a taxi at 5:07am. They were stopped by Police at 5:13am.

7.The Police found a pair of gloves, a surgical mask and a torch on D1; a surgical mask and a torch on D2. Between them sat the one plastic bag filled with the stolen dried goods mentioned above.

8.Further investigation showed that the shop was ransacked and the cash register damaged. The hole in the wall was found with concrete lying on the ground nearby. A crowbar, two screwdrivers and a chopper was found near a staircase that led to the mezzanine floor of the shop.

9.The dried goods in the plastic bag found between the defendants in the taxi were worth $152,930, while those in the rucksacks and other bags were worth a total of $565,407.

Previous convictions

10.D1 has 20 convictions from 14 court appearances. 13 convictions were for burglary and 3 for attempted burglary. His last conviction was on 6 August 2014 when he was sentenced to 26 months’ imprisonment for one charge of burglary (cf. CACC 281/2014). D1 is a persistent offender.

11.D2 has 19 convictions from 13 court appearances. 14 were for burglary. His last conviction was also on 6 August 2014 when he was sentenced to 26 months’ imprisonment for one charge of burglary (cf. CACC 281/2014). D2 is also a persistent offender.

12.In fact, D1 and D2 were jointly charged in DCCC 433/2014 which was dealt with on appeal in CACC 281/2014. There the Court of Appeal found that the aggravating factors of persistent offending together with the circumstances of the commission of the burglary warranted an enhancement of 9 months’ imprisonment.

Mitigation

D1

13.D1 was born in August 1953 and aged 62. He used to be a construction site worker, earning around $7000 to $8000 per month, half of which would go to his family. I was told that the defendant committed the offence out of momentary greed and his desire to not add to the burden of his children.

14.As to the circumstances of the offence, Mr Iu submitted that the tools used were found nearby, that there were no injuries to or confrontation with anyone.

D2

15.D2 was born in August 1954 and aged 61. The defendant used to work as an assistant chef in mainland China but was relying on CSSA at the time of the offence. Although his family members are not in court, they do support the defendant. The defendant’s wife wrote in to ask the court to be lenient in its sentence. I was told that the defendant committed the present offence because he needed money for his mother-in-law’s funeral.

16.In relation to the defendant’s health, I was told that since his prostate cancer surgery in May 2016, he is reliant on a urethra tube for his body’s waste disposal.

17.Lastly, both counsel pointed out that all the stolen goods were recovered and no substantial loss was suffered by the shop.

Sentence

18.It is trite law that the guideline sentence for burglary of a non-domestic premises for a first offender without any aggravating or mitigating factors is that of 2 years 6 months’ imprisonment.

19.In relation to both D1 and D2, I find that nothing in their personal or family circumstances amounted to anything exceptional and they are not to be taken as mitigating factors.

20.I do find that the criminal records, in particular the similar previous convictions, of D1 and D2 are such that they should be treated as an aggravating factor.

21.I find that the circumstances of the commission of the burglary involved various factors, which when viewed together, amount to aggravating circumstances. The factors are that heavy equipment was used to enlarge the hole to gain entry, there was ransacking of the premises, the offence involved two people, and they target substantial premises, no doubt anticipating that dried goods of high value were being stored on the premises. But for the work of the Police, they might have gotten away with the stolen goods and the shop would have suffered quite a substantial loss.

22.For both D1 and D2, I adopt a starting point of 2 years 6 months imprisonment. I enhance each of their sentence by 9 months for the two aggravating factors, namely, being persistent offenders and for the circumstances of the commission of the burglary.

23.I will grant them the full 1/3 discount for their guilty plea and sentence them each to 26 months’ imprisonment.