HKSAR v. Yeung Ying Kit, Ken

DCCC 240/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 240 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of burglary.

2.On 3 February 2016, the defendant entered, as a trespasser, a shop called “Nails From The Heart” in the United Centre, Queensway, Admiralty, with intent to steal.  This shop premises had two rooms.  At the time of the burglary, one of the rooms was occupied by the victim proprietor and clients.  The second room next door was accessed by a sliding door.  At the time, the sliding door was closed but not locked.  The photographs show the layout of these two rooms, as well as the sliding door of the second room.

3.In the second room is a cupboard that can be accessed from the first room as well.  The victim put her handbag in this cupboard.

4.The facts show the defendant obviously entered the second room, opened the cupboard, took out the victim’s coin purse from her handbag, and, during the course of this burglary, dropped some coins.  The victim, who was with a client in the first room, heard sounds like coins dropping onto the ground.  The victim slid open the cupboard door and could see immediately the defendant in the second room searching through her red coin bag.  She shouted at the defendant.  She ran out of the first room at the same time as the defendant ran out of the second room.  She chased him towards the escalator.  A nearby proprietor of a flower shop heard and saw the defendant running away and the victim chasing him.  He, and ultimately security guards, chased the defendant and subdued him.  The defendant essentially was caught red-handed.

5.The defendant’s plea today is his best mitigation.

6.The defendant has a poor criminal record.  He has 13 previous convictions, of which 8 relate to dishonesty.  That includes one for burglary in 2004.  His last conviction was in 2014 for pickpocketing.

7.It is clear from the defendant’s criminal record he is a drug addict.  He has been sentenced to drug addiction treatment centre on five separate occasions.

8.The defendant is now 36 years old.  He is married, but has no children.  From his antecedents and mitigation, I have been told he was educated in Hong Kong and Australia up to secondary level.  He has family members here in court today to support him.  Mr Ma has been told by his family that they intend to help the defendant move to Australia after he has served the sentence for this offence.  He has relatives there.  The reason for this plan is that they feel Hong Kong is a bad environment for a drug addict.

9.There is a tariff for a burglary of a non-domestic premises.  The Court of Appeal have said on many occasions that a 2½ year starting point where there are no aggravating or mitigating factors that exist is appropriate.

10.Mr Ma has said all he can on behalf of the defendant.  He has referred me to the authority of HKSAR v Cheung To Ming CACC 407/2005.  He submits that like the defendant in that case, this defendant should have a lower starting point because the burglary was of an opportunistic nature.  In that authority, an illegal immigrant entered a kitchen of a nature reserve and cooked and ate two packets of noodles because he was hungry.  He told the police that the door of the kitchen was open, so he entered it.  He was a hungry, opportunistic burglar, who walked through an open door.  The Court of Appeal found an 18‑month starting point appropriate, but described that case as having the most unusual circumstances.

11.Here I do not find the burglary of unusual circumstances.  The defendant did not walk through an open door and steal whatever he saw worth stealing.  Here, the defendant needed to slide open the door to this room and open the cupboard.  He then had to root through the victim’s handbag and take out her coin purse.  I do not find the facts so similar to that authority that I should consider an 18-month starting point instead of the normal 30-month starting point.  I am sure the fact no loss was suffered by the victim, and the defendant ran empty‑handed, was only because he dropped coins and was discovered by the victim.  However, I will take into account the sliding door was not locked.  The defendant did not break in nor have tools to break in on him.

12.Therefore, I will reduce the usual starting point by 3 months.

13.Defendant, please stand up.  I take a starting point of 2 years and 3 months, but you have pleaded guilty and you are entitled to a discount of one-third.  After that discount is applied, for this offence, you are sentenced to 1 year and 6 months’ imprisonment.