HKSAR v. Yiu Kwai Hung and Another

DCCC 498/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 498 OF 2016

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REASONS FOR SENTENCE

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1.This is a case of burglary of commercial premises.

2.Both defendants were caught red-handed when they committed burglary to a jewellery shop (Charge 8) on 29 February 2016.  Both defendants frankly admitted their guilt to the police and have since been detained. 

3.In addition, D1 has admitted other crimes to the police.  As a result, seven more charges of the same nature were laid against him.

4.In court, D1 faced a total of eight charges. Upon agreement, D1 pleaded guilty to six of them, namely Charges 1, 3, 4, 5, 7 and 8.  The remaining two charges, namely Charges 2 and 6, are to be kept on court file and not to be proceeded with without the leave the court.

5.D2 faced only one charge, Charge 8, jointly with D1.  D2 pleaded guilty to this charge.

6.Below are the facts of the convicted charges.

Facts - Charge 8 (D1 and D2 jointly)

7.The police was laying ambush outside a jewellery shop in Cheung Sha Wan area in the early hours of the day.  The police carefully observed the two defendants’ actions. 

8.Since midnight, both defendants have been in frequent contact with each other through their mobile phones.  Besides, D1 had come to the front of the shop for three times in a car which registration number was subsequently found not to exist in the Transport Department record. Each time D1 tampered with the roller shutter padlock and then left. 

9.On the other hand, D2 was seen driving his own vehicle in the vicinity. 

10.In the final turn of events, at 4:40 am, both defendants came in from the above faked registration car.  They both alighted and walked to the front of the shop whereas a third person, the driver, was waiting inside the car.

11.D1 lifted the shutter and then stayed outside the shop to watch.  D2 entered the shop.  Once inside, D2 used a screwdriver to pry open the display box.  D2 took some jewelleries out and put them into a white coloured bag he carried. 

12.Shortly after, the alarm went off, D2 rushed out from the shop holding the white bag on his hand while dropping the screwdriver and some jewelleries onto the ground.

13.Both defendants were thus looking for the waiting car which, however, had been driven away by the third person to escape police interception. 

14.Both defendants tried to flee on foot instead but were stopped and arrested by the police.  D2 dropped the bag onto the ground altogether. 

15.It was subsequently found out that the bag contained nine pieces of diamond, a face mask, screwdriver and a torch.  Those nine pieces of diamonds are worth roughly HK$100,000, despite the fact that the whole shop actually contained $10 million worth of jewellery.  All missing jewelleries were recovered by the police.  The shop suffered no loss except that the roller shutter was damaged and it cost $1,700 to repair.

16.Subsequent to the raid, the police located D2’s own vehicle in Mong Kok area.  The following items were found inside its compartment:-

(1) a hydraulic plier;

(2) screwdriver;

(3) gloves;

(4) a mobile phone which contained pictures of the shop and it also contained call details with D1’s mobile phone for 70 times in the same morning.

17.Further investigation revealed that D1 committed the following five more burglaries, actual or attempted, to some shops, also at around midnight over the preceding 3 months’ period.  All these offences were committed in Kowloon area.  For some, D1 did it by himself; for some, he did it with another person.

Charge 1 - Attempted burglary

18.On 14 November 2015, D1 came to a dried seafood shop in Tsim Sha Tsui.  He used a hydraulic plier to cut open the roller shutter padlock intending to steal from inside but had to abort his action because he noticed some passers-by. 

Charge 3 – Burglary

19.On 23 November 2015, D1 was assisting another person and acted mainly as a lookout in a burglary to a restaurant in Sham Shui Po.  As a result, around $70,000 of cash takings were stolen. 

Charge 4 - Burglary

20.On 9 December 2015, D1 assisted another person to burgle a desert shop in Mong Kok.  He acted as a lookout.  As a result, some $3,000 cash was taken.

Charge 5 - Burglary

21.On the same day, on 9 December 2015, within hours after the above offence 4, D1 assisted another person to burgle a restaurant in Sham Shui Po area.  He mainly acted as a lookout.  As a result, less than $1,000 cash was stolen.

Charge 7 - Attempted burglary

22.On 13 December 2015, D1 attempted to burgle a fashion boutique in Kwun Tong area.  He was alone trying to pry open the control box of the electric roller shutter.  For some unknown reasons, he aborted his action and left the scene.  The boutique suffered no loss except that the control box was damaged.

Mitigation and Criminal Records

23.D1 is 44 years old and is single.  Counsel submitted that he worked as a construction site worker before he was arrested.

24.D1 has numerous criminal records.  He started transgressing the law when he was 16 years old.  Up to the present offence, he has been convicted on a total 19 occasions in court involving 27 charges where six were burglaries.  The last burglary was committed in year 2014 when D1 was sentenced to 2 years’ imprisonment.  He thus committed the present offences just half a year after he was released from prison. 

25.D2 is 49 years old.  He was married a long time ago but he lost contact with his wife already.  He now has a very caring girlfriend.  He worked as a salesman before he was arrested. 

26.D2 had trouble with the law as early as when he was 13 years old in year 1980.  He committed his first burglary offence in 1981.  Before the present offence he had been convicted of 31 occasions in court of 60 charges.  Among them, 39 were burglary or attempted.  The last of which was in year 2016 when he was sentenced to 25 months’ imprisonment.  He committed the present offence about half a year after he was discharged from prison.

27.D2’s counsel submitted that D2 suffered from a fractured ankle in the past which is now confirmed by the medical report called for by this court, and that is why D2 had to come to court in wheelchair.  In addition, D2 suffered multiple abrasions over his body when he was detained by the police in this case.  Those injuries were confirmed by the contemporaneous medical report. 

28.D2 volunteered compensation to the jewellery shop for the damaged padlock which cost $1,700 to repair.  As a result, compensation order will be made by this court. 

29.Both defence counsel submitted that while this court may in view of the defendants’ records enhance the starting point, the enhancement should be proportional and should not give the impression that the defendants are to be punished again. 

Cases

30.The usual starting point for non-domestic burglary is 2½ years (30 months’ imprisonment), but it should be adjusted depending on the particular circumstances of the case and the particular circumstances of the defendant and plea, etc.  

31.In Cheng Wai Kai[1], the Court of Appeal stated at paragraph 14:-

“The proper starting point for sentence in a case of burglary of non-domestic burglary is 30 months’ imprisonment (See R v Wong Man, unreported, CACC 372/1992).”

At paragraph 15:-

“The starting point can be adjusted upwards if there are aggravating circumstances such as:

(1) the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment;

(2) the offence is committed by two or more people;

(3) the offence targets at substantial premises and involves substantial properties;

(4) the offender is a professional burglar and not just an opportunist;

(5) the offender has previous convictions, particularly previous convictions of similar nature; and

(6) the offender commits multiple offences.”

Sentence for Charge 8

32.The usual starting point for commercial premises (30 months’ imprisonment) is adopted.  However, there are aggravating features in this charge:-

(1) The plot was well prepared. Pictures of the shop were taken beforehand. A faked registration car which is still at large was used. The plot was skilfully executed. Few hours before the burglary, both defendants were in frequent phone contacts. D1 had tested or tampered the shutter lock a few times and D2 was driving in the vicinity obviously to prepare for the action and/or to do surveillance;

(2) Because of the features in (1) and because of their experiences, judging from their number of burglary convictions, both defendants are categorically professional burglars;

(3) This case involved three culprits ie two burglars (D1 and D2) and a driver who managed to escape police interception; and

(4) Valuable items were targeted. It was a jewellery shop. The fact that only nine diamonds were managed to be put inside the bag was because the defendants had to flee from the alarm. The shop could have suffered huge loss if the burglary went unnoticed.

33.Because of these four factors, the 30 months’ starting point is increased by 3 months to 33 months.

Recidivism

34.Both defendants have bad burglary records.  D1 has six whereas D2 has 39.  Both defendants had been released from prison about half a year before they committed the present offences.

35.In Hai Chung Po[2], a 35-year-old defendant with five previous burglary convictions was given an enhanced 3 months’ imprisonment because of his appalling criminal records.  On appeal, the enhancement was commented to be modest and was upheld. 

36.Accordingly, three months should be added to existing starting point for both defendants for their bad records.  Note has been given to the 3 months’ increase in paragraph 31.  Overall, the punishment is proportional.  Full one-third guilty plea discount has to be given to both defendants though. 

37.About D2’s medical condition, his fractured ankle came from his personal history and was therefore not related to the present case at all.  For his multiple abrasions inflicted during police custody, those injuries are not permanent in nature and should have been properly cared for by now because D2 was all along staying for almost a year in the hospital ward of the Correctional Services Department.  In any event, those post-event abrasions did not affect his culpability in the offence.  Any injustices should be dealt with in another forum or tribunal and should not impact on his sentence here.

38.D2’s willingness to compensate for the loss of the jewellery shop is a factor to consider.  It shows that he is truly remorseful, that a full one-third discount shall be afforded to him.  Being a hardened criminal and having a lot of experiences in court, he must have hoped that by offering compensation, further leniency will be given by this court which, however, after consideration, could not be offered.  At page 109 of Sentencing in Hong Kong[3]:-

“A compensation order does not rank as a sentence in its own right. It is an order ancillary to sentence, imposed ‘in addition to’ a sentence or other order: Attorney General v Kwong Kin Wing [1989] 2 HKLR 3, 7. True, a willingness to make compensation to the victim may stand an accused in good stead as evidence of remorse: HKSAR v Leung Shuk Man [2002] 3 HKC 424, 429. Otherwise, however, a compensation order is, strictly, one which is independent of the sentencing exercise: R v Barney [1989] 11 Cr App R (S) 448). A court should, in any event, remain alert to the possibility that an offer of compensation may be prompted by the hope of a lenient sentence: HKSAR v Cheung Chun Wing [2000] 1 HKLRD 189, 193.”

39.For Charge 8, both defendants are sentenced to 24 months’ imprisonment which is computed by 30 months plus 3 months plus 3 months times 2 over 3 and the result is 24 months. 

Sentence for D1

40.But this is not the end of the matter for D1 because he has five more charges in court. 

41.The usual starting point of 30 months’ imprisonment is adopted uniformly for these five charges.  The attempted burglary should be punished like the substantive as D1’s action was curtailed not because he regained his conscience but only because he wanted to protect himself from the change of circumstances at the scene.   The sentences of these five charges are likewise enhanced by 3 months’ imprisonment because of his bad record.  These five charges should therefore each carry 22 months’ imprisonment, which is computed by 30 plus 3 times 2 divided by 3, that equals to 22 months. 

42.No other sufficient aggravating feature is seen in these individual charges, but the fact that they were all committed within the 3 months’ period is relevant in considering totality. 

Totality Principle

43.In Chan Tsz Leung[4], a 24 years old defendant was sentenced on appeal to 5 years’ overall starting point imprisonment for 15 burglary offences.  The offences were committed within a 6 months’ period and the targets were schools and restaurants.  The defendant has numerous dishonesty related convictions.

44.In Fan Kit Hung[5], a professional burglar was sentenced on appeal to an overall starting point of 6 years’ imprisonment for 13 non-domestic burglaries which were committed within a period of 4 months.  The defendant had no burglary criminal record.

45.In Cheng Wai Kai (above), the overall starting point of 5 years’ imprisonment that was given to a defendant for five non-domestic burglary charges was upheld on appeal.  This defendant has no burglary criminal record. 

46.In Hui Yee Lung[6], footnote 6, a professional burglar was sentenced on appeal to an overall starting point of 6 years’ imprisonment for seven burglaries he committed mainly to schools and universities.  He stole 22 notebook computers and some other electrical devices.  He had no less than 28 burglary convictions.

47.Here, D1 is an experienced and professional burglar.  Over the last 15 years, he had six burglary convictions.  Each time he was sentenced to imprisonment.  He committed the present offence half a year after he was released.  He committed the present six burglary offences, attempted or substantive, over a 3 months’ period, all in Kowloon peninsula area.  A starting point of 5½ years (66 months) imprisonment is adopted.  Being given the one-third guilty plea discount, D1 should be sentenced to 44 months’ imprisonment.

Result

48.To give effect to the total 44 months’ imprisonment, 24 months’ imprisonment shall remain for Charge 8.  As said, Charges 1, 3, 4, 5 and 7, each carries 22 months’ imprisonment.  However,

(1) only 4 months of Charge 1 is to run consecutive to Charge 8;

(2) 4 months of Charge 3 is to run consecutive to sentences in Charges 1 and 8;

(3) 4 months of Charge 4 is to run consecutive to the sentences in the above Charges 1, 3 and 8;

(4) 4 months of Charge 5 is to run consecutive to the sentences of Charges 1, 3, 4 and 8;

(5) 4 months of Charge 7 is to run consecutive to the sentences of the above Charges 1, 3, 4, 5 and 8. D1 is thus sentenced to a total of 44 months’ imprisonment.

49.D2 is sentenced to 24 months’ imprisonment on Charge 8 and is ordered to compensate the victim jewellery shop, ie, Chin Fai Gold & Jewellery (III) Company Limited $1,700 forthwith.