HKSAR v. Yau Chi Wai

DCCC 983/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 983 OF 2016

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

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

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

Reasons for Sentence

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

1.The defendant has pleaded guilty to one charge of burglary and one charge of theft.  The burglary was committed on 20 March 2016 and the theft committed whilst the defendant was on bail for Charge 1 on dates between 28 and 31 August 2016.

2.The burglary involved a premises that was vacated and under renovation.  The defendant burgled the 1st floor of a building in Mong Kok.  But from the photographs, it is clear the whole building was under renovation and there were no occupants.  On the 1st floor, the defendant stole 15 rolls of electric wire and five tools. 

3.The owner estimated the value of the items stolen at about $5,000.

4.The defendant was caught red-handed leaving the rear lane behind the building with the items on a trolley.  He also had possession of a bolt cutter which was later determined to be the one that cut the padlock for the defendant to access the building. 

5.The defendant was given bail after his arrest.  However, he then went on to steal between 28 and 31 August a total of seven water meters and eight copper pipes right off the wall of a building in Portland Street.  It seems that the tenants of that building complained about water issues to the building management and the thefts were discovered. 

6.To repair the damage and replace pipes and water meters, the value is about HK$20,000.  And obviously the defendant’s theft caused great inconvenience to the tenants or occupants of those homes affected with no water meter. 

7.CCTV footage captured the defendant at the rear lane of this building where the pipes and water meters were located on three separate dates between 28 and 31 August.

8.The defendant’s best mitigation is his plea of guilty.  He is not a man with a clear record.  He has 33 previous convictions obtained over 20 court appearances, many of them are burglary and theft convictions.  His last conviction was for burglary and he was sentenced at the District Court in May 2013.

9.I have seen the reasons for sentence and the mitigation put forward is very similar; he had lost his job when the restaurant he worked in closed down.  His father was financially dependent on him leading him to steal renovation tools and materials from three different premises on six different occasions.

10.In today’s mitigation, what is different is that he now has other people who are financially dependent on him including a girlfriend and her four young children.  I do note that in that case the starting point was increased due to his persistent offending.  Serial burglars can expect an increase in the starting point. 

11.I have been told today that since the end of 2014 he has been living with his girlfriend and her four children who are aged between 5 and 9.  They rent a room in Mong Kok and the rent is $4,000 a month.  His girlfriend does have a job, but she is not in good health and suffers from sciatica.

12.I have seen a letter from the defendant and his girlfriend as well as a medical appointment slip for her problem.  I have taken the contents of those letters into account. 

13.The prosecution fairly concedes that the premises burgled were under renovation, they were not occupied and clearly there was no danger of any occupant being confronted or frightened by the defendant entering premises.  I can take a lower than usual starting point under those circumstances. 

14.Despite the defendant’s appalling criminal record, I have decided not to increase the starting point for his repeat recidivism.  I accept that he has stayed out of trouble for some while and because of his financial situation, desperation led to these offences.  Why else would one commit another offence whilst on bail knowing the consequences would be serious?

15.Defendant, please stand up.

16.I do take into account your pleas, facts of the two charges, mitigation put forward including those that are financially dependent on you and the reasons you committed these offences.  I also take into account the value of the items stolen in both charges and the inconvenience caused to those involved in Charge 2. 

17.Burglary of a non-domestic premise and at the time of the offence these premises were not occupied; the starting point is normally 2½ years.  Because of the fact it was under renovation and there was no risk of any confrontation, I will take a lower than normal starting point.  

18.For Charge 1, I take a starting point of 2 years’ imprisonment.  For Charge 2, I take into account that there are no tariffs for this charge, but what is relevant is the value of replacing all the stolen items was high, the nuisance caused by the theft would have been significant and the offence was committed whilst on bail, therefore, I find a starting point of 18 months appropriate. 

19.You have pleaded guilty and are entitled to a discount of one-third for those pleas.  After the discount is applied, for Charge 1, you are sentenced to 16 months’ imprisonment.  For Charge 2, a sentence of 12 months.

20.I take into account that the two charges were committed some five months apart, but there is also the totality principle to bear in mind.  I will order that 4 months of Charge 2 be served consecutively to Charge 1 and the balance concurrently.  Therefore, the total sentence for Charge 1 and 2 is one of 20 months’ imprisonment.  Do you understand that sentence?

DEFENDANT: Understood.