HKSAR v. Chan Yiu Wah, Kenny

DCCC 352/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 352 OF 2017

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Reasons for Sentence

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1.The defendant pleaded guilty to 2 charges of burglary (counts 1 and 3) and one charge of using a false instrument (count 2).

Outline of facts

Count 1 and 2

2.PW1 lived alone at a flat on the 13^th floor of Wun Sha Court in Tai Hang.

3.She left home at 09:30am on 3 October 2016 and returned home at around 7:30pm on the same day to find the keyhole of the main door broken and her flat ransacked. A total of 24 items were stolen. Of those, 7 were later recovered. The total loss is estimated at $39,000. PW1’s Korean passport was among the stolen items.

4.3 fingerprints were lifted from the flat. One of them was found outside the main door and matched that of the defendant.

5.Closed circuit television cameras (“cctv”) captured the defendant entering the building at 12:38pm on the same day wearing Hong Kong Telecom (“HKT”) uniform and took the lift to 15^th floor. He left the building at 3:49pm. It would later transpire that the defendant had used a forged HKT staff card to assist in his entry into the building.

Count 3

6.PW2 lived at 4^th floor, Tung Street, Central. She and her friend left the unit in the morning of 28^th November 2016.

7.PW2 returned later at 6:30pm and found the lock to the door broken and the door left ajar. Her flat was ransacked. A total of 41 items were found to have been stolen. All but 9 were later recovered. The 9 items were branded goods and had a total estimated value of $117,000.

The defendant’s arrest

8.Patrolling police officers spotted the defendant acting suspiciously outside number 4 Lincoln Road at 12:55am on 10^th December 2016.  The defendant was stopped and searched. He was arrested when it was discovered that he was a wanted person.

9.Under caution, the defendant confessed to committing a burglary in Happy Valley when he took a gold medal and a Samsung notebook computer.

10.In later searches of the defendant’s home and car, various items stolen from PW1 and PW2 were recovered.

The defendant’s video recorded interviews

11.The defendant gave the following story in the first video recorded interview held on 10^th December, regarding the burglary in count 1.

12.The defendant said he followed a resident to enter the building, took the lift to 15^th floor, and then walked down the stairs to find a flat to burgle. He knocked on PW1’s unit on 13^th floor to make sure no one was home. He picked open the lock with a metal plate and entered the unit to steal.

13.The defendant sold some of the stolen goods and threw the passport away.

14.The defendant added to his story in the next video recorded interview held on 11^th December after the relevant cctv footage were shown to him.

15.In addition to following other residents to enter the building, the defendant had pretended to be an employee of Hong Kong Telecommunications Limited (“HKT”) by wearing their uniform and using a HKT visitor card that he had kept from when he used to work for the company. Investigation confirmed that the defendant had previously been employed as a senior technician between 6^th October 2014 and 8^th June 2016. 

16.The defendant used the forged HKT staff card to show the security staff of the building and told them he was on a job. This use of the forged staff card is the subject matter of charge 2.

17.Instead of a simple metal plate, the defendant actually used a master key set to pick the lock of the flat in count 1.

Burglary in count 2

18.In relation to count 2, the defendant gave the following story in his video recorded interview.

19.The defendant put on his old HKT uniform and carried a PCCW backpack with a crowbar inside. He gained access into the building by peeping at the passcode input by other residents.

20.The defendant walked up the staircase to the rooftop and then walked down to 4^th floor. He knocked on the door of the unit in question to make sure no one was inside. He then prized open the lock with the crowbar. Once inside he stole. Some of the stolen goods were sold and some he kept.

Previous convictions

21.The defendant was sentenced on 10 previous occasions, resulting in a total of 17 conviction records.

22.Of the 17, 14 involved an element of dishonesty. Of this 14, 7 were for the offence of burglary.

23.The defendant’s latest convictions were in August 2011, when he was sentenced in the District Court to a total of 34 months’ imprisonment for burglary and theft. He was last released from imprisonment in March 2013.

Mitigation

24.The defendant is 43, born in Hong Kong and educated up to Form 4 level.

25.Mr Cheung for the defendant informed the court that since the defendant’s release in March 2013, he had attended various vocational training courses in order to try to stand again on his own feet.

26.As the summary of facts disclosed, he managed to find employment as a senior technician of HKT between 6^th October 2014 and 8^th June 2016.

27.Unfortunately, he was made redundant in June 2016. With an ageing mother (85) who suffers from high blood pressure and dementia,  and a 14 year old son who suffered brain damage at birth requiring special care to support, the defendant resorted to burglary when he had nowhere else to turn to.

28.Despite his situation, the defendant has been participating in World Vision’s child sponsoring programme, helping at least one child towards a better life in Burundi.

29.Mr Cheung very fairly pointed out there is nothing to suggest that the court should depart from the usual 3 years starting point for burglary of a domestic premises. He, however, urged that leniency should be shown to the defendant and that the principle of totality must be properly applied.

Sentence

30.The guideline sentence for burglary of a domestic premises is that of 3 years’ imprisonment after trial.

Premeditation

31.The commission of the burglaries were premeditated. There was a certain degree of planning and some sophistication in their execution. Although a lot of items were recovered, the total monetary loss is still around $156,000. The value of the goods stolen were not unsubstantial.

32.The defendant did ensure that the burgled flats were vacant before entering, thus reducing the risk of any confrontation with the occupants. This, however, is not a mitigating factor, but the absence of an aggravating factor.

33.I see no reason to depart from the guideline starting point and I do adopt the same 3 years starting point for both count 1 and 3.

34.The defendant had indicated his pleas of guilty in a timely fashion and is entitled to the full 1/3 discount.

35.The sentence after plea for counts 1 and 3 is therefore 2 years’ imprisonment respectively.

36.As for count 2, the maximum sentence on conviction upon indictment is that of 14 years’ imprisonment.

37.The forged HKT staff card was used to gain entry into the building so that the defendant could commit the offence of burglary. I adopt a starting point of 18 months’ imprisonment for count 2, resulting in a sentence of 12 months’ imprisonment after plea.

38.Given that the circumstances surrounding the commission of the using of the forged staff card are directly connected to the commission of the burglary in count 1, I will order the sentences in count 1 and 2 to be served wholly concurrently.

Aggravating factors

39.Although the defendant has multiple criminal convictions, his last one was some 6 years ago. I will not view his previous conviction records as an aggravating factor.

Mitigating factors

40.I find the personal circumstances together with the defendant’s sponsoring of a child through World Vision mitigating factors enough to warrant some discount from the final sentence. I will, therefore, reduce the final sentence by 2 months after applying the totality principle.

Totality

41.The two burglaries were committed 1 month apart, at different premises involving two different victims. They are not part and parcel of one single transaction.

42.Taking a step back, I will order that 15 months of the sentence in count 3 be served consecutively to the 24 months sentence in counts 1 and 2, making a total of 39 months’ imprisonment.

Final sentence

43.As mentioned above, this sentence is reduced by 2 months for the identified mitigating factors.

44.The defendant is, therefore, sentenced to a total of 37 months’ imprisonment.