HKSAR v. Kwan Tze Yin and Another

DCCC 78/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 78 OF 2016

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Reasons for Sentence

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1.Both defendants have pleaded guilty to two counts of burglary. Two premises were burgled, I am sure either one after the other or almost simultaneously, by both defendants.

2.The facts are that two homeowners who lived side by side in Flat A and B of the 12th floor of a building in Sham Shui Po were the victims of these two burglaries.  On the morning of 8 September 2015, both homeowners went out in the morning and locked up their homes securely. 

3.The first victim of Flat A came home at about 1.40 pm.  He found his main gate and main door prised open.  There were valuables missing from within his home. 

4.The second victim of Flat B was informed at about 2.30 that her home had been burgled.  She rushed home to find her main gate and main door prised open.  Her home had been ransacked and a safe prised open.  She too had many valuables stolen. 

5.But, in fact, before both burglaries were discovered by the homeowners, the 1st and 2nd defendant had already been stopped and searched by the police.  Vigilant police officers saw at about 11.15 am that morning the 1st defendant getting out of a private car and entering the building in Sham Shui Po.  They kept watch over this vehicle and at about 12.05 pm they saw the 2nd defendant get out of the same vehicle and enter the same building.  They waited and watched both defendants leave the victims’ building together at about 1.10 pm.  The defendants were intercepted.

6.The 1st defendant was searched and in his pocket the police found a pair of black gloves and a surgical mask.

7.The 2nd defendant was also searched and in his bag the police found some crowbars, a pair of gloves and a mask, as well as the ignition key for the private vehicle, some screwdrivers and all the valuables that belonged to the first and second victim.

8.The 2nd defendant admitted under caution that he had burgled the premises for some quick money.

9.In the private vehicle, the police found more gloves, face masks and tools such as iron bars and pliers as well as a bolt cutter.  They even found notes on how to prise open various types of locks.

10.Under caution, the 1st defendant made no admission. 

11.The 2nd defendant, under caution, in a video recorded interview, made further admissions.  He frankly admitted entering both victims’ homes and stealing from within.  He admitted he prised open their doors. 

12.The police obtained telephone records and clearly both defendants had several telephone conversations that morning before they were arrested.

13.A government chemist confirmed that paint from the gate of Flat A and the safe of Flat B ended up on the defendants’ belongings.

14.The defendants’ best mitigation is their pleas of guilty. 

15.Both defence counsel have said all they can on behalf of the defendants in mitigation.

16.I have received a letter from the 1st defendant and considered its contents.

17.The 1st defendant is not a man with a clear record.  He does have 10 previous convictions, including two for burglary. These burglaries were committed in 1994 and 2001.  The burglary in 2001 was, in fact, the defendant’s last conviction.

18.The 2nd defendant has a clear record.

19.Both defendants are 57 years old.  Both defendants are family men.  The 1st defendant has married twice and has two adult sons from his first marriage and a 16-year-old daughter from his second marriage.  The 2nd defendant is married with a 10-year-old son.  His wife and son came from Mainland China to Hong Kong on a one-way permit to live with the defendant in 2011. 

20.Both defendants have family members in court to support them today.

21.It has been explained in mitigation that both committed these offences essentially for their families.

22.The 1st defendant’s youngest son has his own business, but got into some financial difficulty with it.  The 1st defendant wanted to help, but had no means to help him without committing these offences.

23.When the 2nd defendant’s wife and son came to Hong Kong, he borrowed money to renovate his home for their arrival here.  That debt spiralled and at its highest he owed $300,000.  At the time he had a good job working in China.  When he got into debt, he drove a taxi for extra income.  He even, at his age, studied to take the exams for an estate agent licence and an insurance agent licence.  I am told he was successful in April 2015 and June 2015 and obtained these licences.  Sadly, both are of little use to him now that he has a criminal record.

24.The 1st defendant, prior to this offence, was a taxi driver. 

25.Normally, for burglaries of domestic premises, the starting point is one of 3 years, where there are no aggravating or mitigating factors.

26.What is relevant here is the fact there were two of you, two of them, two defendants.  The burglaries took place during the day.  I am sure the 1st defendant entered the building first to knock on doors to see if homeowners were actually inside. 

27.I also consider relevant that all stolen goods were recovered; both defendants pleaded guilty; 2nd defendant has a clear record at 57 years old; and the 1st defendant, despite his record, has not been in court since 2001.

28.Defendants, please stand up.

29.After careful consideration of all those relevant factors as well as mitigation put forward, I do not differentiate between the roles of either defendant.  I find it appropriate to consider a 3-year starting point for both defendants. 

30.For both defendants’ plea, they are entitled to a discount of one-third.  That reduces the sentence to one of 2 years.

31.I have considered submissions made and the facts as well as the totality principle.

32.I will order that the sentences for Charges 2 and 3 be served concurrently.

33.The 1st defendant for Charge 2 and 3 is sentenced to 2 years’ imprisonment for each charge.

34.The 2nd defendant, the same, for Charge 2 and 3, is sentenced to 2 years’ imprisonment for each charge.

35.As sentence will be served concurrently, the total sentence for each defendant is one of 2 years’ imprisonment.

COURT: You both understand the sentence?

INTERPRETER: Both understand.