HKSAR v. Tang Shing Yu

DCCC 1132/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1132 OF 2016

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to 2 charges of "Burglary" (Charges 1 and 7) and 1 charge of "Taking conveyance without authority" (Charge 2).

2.He also faces 4 other traffic-related offences (Charges 3 to 6).  The prosecution applied to leave Charges 3 to 6 in the court file; not to be proceeded against him without leave of court.  I granted the application.

Summary of Facts

Charge 1

3.About 12:15 p.m. on 14 September 2016, the defendant drove his private car (NA 526) to the carpark ("the Carpark") located outside The Hong Kong Jockey Club Off-course Betting Branch situated at Kin Wing Street, Tuen Mun ("the Betting Branch").

4.After parking his car at the Carpark, the defendant approached the louver doors of the air-conditioning plant room of the Betting Branch ("the AC Plant Room") and wandered around.

5.About 12:30 p.m. on the same day, the defendant started peeping into the AC Plant Room through its louver doors.  He shook the louver doors looking for one which was not firmly locked.  About 5 minutes later, the defendant climbed up the louver doors and peeped into the AC Plant Room.  He then pulled open the louver doors with force and entered the AC Plant Room with intent to steal therein. He closed the louver doors after he went in.

6.All of the above was recorded by the car camera of a private car (TW 7546) parked outside the AC Plant Room.

7.About 1:00 p.m. on the same day, a manager of the Betting Branch (Mr. CHAN), who was then working in the back office, heard some banging noise emanating from the AC Plant Room.  The back office of the Betting Branch and the AC Plant Room were separated by a locked door ("the Locked Door").  Mr. CHAN found someone behind the Locked Door shaking it fiercely.

8.Shortly afterwards, the defendant came out of the AC Plant Room through the louver doors. He boarded NA 526 and drove away from the Carpark.  This part was also recorded by the car camera of TW 7546.

9.Mr. CHAN later discovered that 2 bolt locks fixed to the side of the Locked Door were broken, with an estimated repair costs in the sum of $18,000.  The Police was alerted.

Charge 2

10.About 2:15 p.m. on the same day, Mr. H. Abbas parked his light goods vehicle ML 5317 ("the LGV") at the junction of Kin Tai Street and Kin Wing Street in Tuen Mun.  He did not turn off the engine and left the car key in the ignition slot.  He then went to collect some used tyres from a nearby garage.  Whilst Mr. Abbas was away, the defendant boarded the LGV and drove it away.

11.All of the above was recorded by the CCTV camera of a company nearby.

12.Upon returning to the parking spot, Mr. Abbas saw the LGV being driven away.  He immediately gave chase and caught up with it near the entrance of the bus depot situated at Kin Wing Street.  Whilst the LGV was still in motion, Mr. Abbas opened the offside front door and saw the defendant in the driver's seat.  He did not know the defendant and was unable to stop him.  The defendant drove the LGV towards Kin Sang Estate.

13.About 2:25 p.m. on the same day, Madam LO, a duty security guard at the vehicle entrance of Kin Sang Estate, saw the LGV entering the housing estate.  She recorded "ML 5317" and a mobile phone number given by the male driver on her log book.  The CCTV camera at the vehicle entrance recorded the defendant driving the LGV into Kin Sang Estate.

Charge 7

14.About 3:35 p.m. on the same day, Sgt. C.K. MAK patrolled to Block 14A, Castle Peak Government Quarters, Tuen Mun.  No one was residing at Block 14A; the building was used for storage of medical records by the Hospital Authority.  Sgt. MAK saw the defendant wandering on the 1^st Floor balcony ("the Balcony") of Block 14A.  He then saw the defendant moving 2 cabinets on the Balcony and heard some metal crashing sound coming from that direction. Sgt. MAK requested for reinforcement.

15.After a short while, Sgt. MAK saw the defendant climbing down from the Balcony along a water pipe.  He intercepted the defendant for enquiry.  The defendant claimed that he was asked by the contractor to remove the door.  Sgt. MAK asked for particulars of the contractor, but the defendant did not reply.  Sgt. MAK asked the defendant to produce his ID card.  The defendant claimed that it was in his car parked near Kin Sang Estate.  At this time, reinforcement arrived.

16.PC 12611 took over the enquiry at the scene.  The defendant claimed that the contractor asked him to dismantle a pair of glass doors.  Further questions were asked, but the defendant's answers led PC 12611 to decide to arrest him for "Burglary".  Under caution, the defendant said "I wanted to dismantle the pair of glass doors and sell them."

17.The Hospital Authority staff member in charge of Block 14A (Mr. WONG) came to the scene.  He found 4 metal windows on the Ground Floor of Block 14A having been prized and damaged, with a total repair costs in the sum of $2,500.

Investigation Results

18.The Police later located the LGV at Kin Sang Estate.

19.The defendant's palm print was found on a window pane on the Ground Floor of Block 14A and on the glass door of the Balcony.

20.At an ID Parade held on 30 September 2016, Mr. Abbas positively identified the defendant as the person who drove away the LGV without his consent on 14 September 2016.

Mitigation & Sentence

21.The defendant is 24 and has a clear record.  Defence counsel Mr. CHAN informed me that the defendant is educated up to F.5.  He was a decoration worker earning an average of $12,000 per month.

22.In mitigation, Mr. CHAN submitted that at the time of the offences, the defendant was separated from his wife and their son (aged 2).  He was emotional and under some financial pressure as well.  As a result, he lost control of himself.  He knows he was foolish. He feels sorry and is truly remorseful. Mr. CHAN stressed that the present case is a one-off incident.  Through his interaction with the defendant, Mr. CHAN did not detect the defendant having any emotional or psychological problems. Furthermore, the defendant is now reunited with his wife and son. 

23.The defendant having a clear record, I give him the benefit of doubt that what he did was out of his character.  I cannot imagine what could be stolen from an air-conditioning plant room.  After driving the LGV away, the defendant did not hide the vehicle at a safe place but a public housing estate, leaving behind a log book entry which has his phone number and a segment of CCTV footage.  It also seems that no valuable items could be stolen from Block 14A, except perhaps scrap metal and junk with little resale value.  Based on the above analysis, I accept that the defendant may not be a typical burglar or car thief.

24.For Charges 1 and 7, the normal starting point for non-domestic burglary is 2.5 years' imprisonment.  Considering the nature of the AC Plant Room and Block 14A; no tools were used; and both premises having no occupiers, a lower starting point can be justified.  Bearing in mind the damage caused to both premises by the defendant, I adopt a starting point of 20 months' imprisonment for each charge.  With the indication of guilty pleas before trial, I grant a 25% discount, reducing the sentence to 15 months[1]. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 15 months' imprisonment for each charge.

25.For Charge 2, stealing a motor vehicle is a serious matter.  Since the LGV was found (and there is no evidence suggesting that it was damaged by the defendant), I adopt a starting point of 16 months' imprisonment.  With the indication of guilty pleas before trial, the sentence is reduced to 12 months.  I sentence the defendant to 12 months' imprisonment for this charge.

26.Bearing in mind the totality principle, I consider a global starting point of 2 years' imprisonment to be appropriate for all 3 charges.  With a 25% discount for the guilty pleas, the overall sentence is reduced to 18 months.  Hence, I order 2 months in Charge 2 to run consecutive to Charge 1; and 1 month in Charge 7 to run consecutive to Charges 1 and 2; thereby arriving at a total prison term of 18 months.