HKSAR v. Yuen Hin Fung

DCCC 1179/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1179 OF 2016

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a count of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

Summary of Facts

2.Mr Leung, (PW1) and his family are living at Room 1115, Wang Sin House, Cheung Wang Estate, Tsing Yi, New Territories, (“the Flat”), at the material times.  None of them smoke.

3.There was a Miss Ko that lived as a neighbour at Room 1114 of the same building.  And the kitchens of the two flats are adjacent to each other with the windows of both kitchens facing the same directions.

4.The defendant was a friend of Miss Ko and the defendant would visit Miss Ko four to five times a month.

5.From about 6 am on 23 December 2015 to about 6 pm on 28 December 2015, none of the residents of the flat was inside the flat.  Before leaving the flat, PW1 closed all the windows and locked all the window guards.  He also locked the iron gate and the wooden door of the flat’s entrance when he left the flat. 

6.On 28 December 2015, PW1 and his father returned to the flat at about 6 pm and found the following:-

- the iron gate of the flat’s entrance unlocked; the kitchen window open with its window guard broke open;

- a cigarette butt, the DNA from which matches the defendant’s is found on the altar in the living room;

- a piece of metal wire on the bed inside the bedroom; and

- the flat was found to be ransacked with the following properties missing: a watch valued at about HK$500 with Octopus function, with a stored value of HK $100; two Bank of China passbooks; one camera bag containing a Canon 70D camera, valued at about HK$10,000; two Canon camera lens, valued at about HK $10,500; a notebook computer, valued at about HK$4,000; and $3,000 Canadian dollars in cash, equivalent value to about HK$17,300; and $3,000 Renminbi in cash, equivalent value of the same, was about HK$3,400.

7.The total value of the stolen property was estimated to be about $45,800.

8.Upon subsequent investigation, the CCTV footage of the Wang Sin House showed that on 25 December 2015 the defendant entered the building at 5.39 pm and left the building at 8.45 pm; and on the same day the defendant entered the building again at 9.06 pm and left the building at 1.09 am on 26 December 2015.

9.The defendant was later on arrested in September 2016, and in a subsequent video-recorded interview, the defendant said under caution that some time between 6 am on 23 December 2015 and 6 pm on 28 December 2015, he had probably been to Miss Ko’s flat and he likely arrived at 6 to 7 pm and left at 1 to 2 am the next day.  

Mitigation

10.The defendant is aged 37 years old.  He is now single and living with his family in Wong Tai Sin.  He is educated up to primary 6 and is working as a chef before he was arrested.  His mother and fiancée are in court today and mitigation letters written by the defendant’s mother, his fiancée as well as by himself were submitted to court. 

11.The letters showed that the defendant was a responsible and loving son, grandson and boyfriend.  The defendant was earning HK$18,000 per month and giving HK$7,000 per month to support the family.  And it was said that the defendant and his fiancée actually planned to get married in 2017, but because of this offence the wedding has to be postponed. 

12.The defendant has some previous criminal records.  He has five previous criminal records from 2001 to 2012, but none of them relates to dishonesty.

13.It was also mitigated by his counsel, Mr Allan, that in fact both defendant’s elderly mother and grandmother got final stage cancer, therefore they need quite a lot of financial support from the defendant for their medication.

Sentence

14.There is well-settled sentencing guideline for burglary of domestic premises.  According to the guideline, the starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment. 

15.The starting point can be adjusted upwards if there are aggravating circumstances such as the offence is carefully planned and skillfully executed involving the use of heavy instruments or equipment; the offence is committed by two or more persons; or, for example, the offence targets at substantial premises and involves substantial properties; the offender is a professional burglar or not just an opportunist; the offender has previous conviction particularly previous convictions of similar nature; or if the offender commits multiple offences. 

16.In the present case, the value of the stolen properties, cannot be said to be small; it worth more than HK$40,000.  But other than that, I cannot see that there are any other aggravating features. 

17.There are actually some mitigation in the present case which cause my concern.  First of all, the defendant’s elderly and sick mother and grandmother and there are evidence proving the defendant was working as a chef earning HK$18,000 per month and giving the family HK$7,000 per month to support the family and the medical treatments of the elderly mother and grandmother.  Also, the defendant is planning to get married with his fiancée before the commission of the offence.

18.Having considered all the above circumstances, I take 2 years and 9 months’ imprisonment as the starting point.  There was 3 months’ reduction from the usual starting point which, to my view, is very lenient and exceptional. Other than that, the only effective mitigation is the defendant’s early plea which was indicated at the first available opportunities at plea day.  So the defendant is entitled to have the full one-third discount.

19.The starting point of 33 months’ imprisonment is reduced to 22 months’ imprisonment.  Other than that, I cannot see there is any other effective mitigating factor.  The defendant is imprisoned for 22 months accordingly.