HKSAR v. Wong Shing Chi and Another
Read the full judgment text of DCCC 117/2017 on BabelCite. This District Court judgment.
1. D1 and D2 plead guilty to 2 joint charges of burglary which took place in the morning and at night respectively on the same date at the same premises.
Cites 3 cases
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DCCC 117/2017 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 117 OF 2017 -----------------------------------
---------------------------- Reasons for Sentence ---------------------------- Charges and facts 1.D1 and D2 plead guilty to 2 joint charges of burglary which took place in the morning and at night respectively on the same date at the same premises. 2.At around 1800 hours on 23 November 2016, PW1, who was the owner of a laundry shop on the ground floor at Yen Chow Street, Sham Shui Po (“the Shop”), received a call from an unknown female telling him that the door of the vending machine in his Shop had been left ajar. 3.He returned to the Shop and found only a few coins valued at $9 left in the vending machine. He had last checked the remaining value of coins in the vending machine on 20 November 2016. He estimated that $1,600 had been stolen. 4.Later, he watched the CCTV footage of the Shop which recorded that:
5. These facts constitute the 1st Charge. 6.At about 2240 hours on 23 November 2016, PW1 was watching the live CCTV footage of the Shop and saw that:
7. These facts constitute the 2nd Charge. 8.Due to their furtive behaviour, PW1 reported the case to the police. Police officers soon arrived and saw D2 acting furtively outside the Shop. Upon police enquiry, D2 said that she and her boyfriend D1 were using the washing machine in the Shop. At this juncture, D1 walked towards D2 and the police officers. Upon police investigation, D1 was arrested for both burglaries. Under caution, D1 said that D2 had nothing to do with either burglary, that he had stolen money from the vending machine, and that he had tried to steal money from the coin exchange machine with a pair of pliers which he then threw away. 9.D2 had $103.10 worth of coins in her jacket pocket. She also had $200 with her. Mitigation 10.D1, who is aged 37, is the cohabitant of D2, who is aged 53. They lived in a small room at one-minute’s walking distance from the Shop. They always patronized the Shop. D1 was unemployed whereas D2 was a saleslady before arrest. 11.D1 had criminal records such as 17 for theft, including attempts and shopliftings. He was last sentenced, in 11/2014, to 3 months concurrent for 2 charges of theft by shoplifting. His theft record is an aggravating factor, though not to a great extent. 12.D2 had criminal records such as an attempted theft, resulting in a sentence of 8 months in 11/2008. 13.Their solicitors submit that the first burglary was an opportunistic one. D1 had no tools and D2 had the umbrella as it was raining that morning. The prosecution’s photo album originated from the CCTV footage can confirm this fact. The second burglary was premeditated on the part of D1 as he brought along a pair of pliers but Mr. Tai, solicitor for D2, contends that it was opportunistic on the part of D2. D2 was seen coming in at a much later point of time without any tools, not even the umbrella. I have seen the photo album and that appears to confirm Mr. Tai’s case. Sentencing guidelines 14.In R v Wong Man [1993] 1 HKC 80, the Court of Appeal says that the proper starting point for non-domestic premises shall be 2 years 6 months’ imprisonment for a first offender of full age. 15.In HKSAR v Sim Ka Wing CACC 450/2000, the Court of Appeal explains that the 2½ years' starting point for burglary of non-domestic premises is adopted where there are elements of planning for the burglary. Where the case involved an opportunistic burglary, for example, that a burglar entered an open premises and stole the things there, the starting point can be adjusted downwards. 16.In HKSAR v Cheung To-ming [2006] HKCA 119, the starting point of 18 months was adopted by the Court of Appeal where the facts, regarded as most unusual, showed a defendant walked through an open door into the kitchen of Mai Po Wildlife Education Centre and Nature Reserve in the countryside. He then stole and consumed two packages of noodles there before he left. Sentencing the Defendants 17.For the 1st Charge, D1 and D2 had supplementary roles. D1 was the prime mover. D2 later came to his aid. As it was an opportunistic burglary for each of them, I take a basic starting point of 1 year 9 months for D1 and 1 year 6 months for D2. D1’s recidivism for theft warrants an extra 3 months in the starting point for more deterrence. D1’s starting point is 2 years. One-third off for the timely plea of guilty, the sentence is 16 months for D1 and 12 months for D2. 18.For the 2nd Charge, D1’s role was certainly premeditated as he had brought along the pliers. I accept that D2’s role was opportunistic. At first, D1 tried to work out the burglary alone. When D2 arrived, they worked on it together. They failed to steal anything eventually. I take a starting point of 2 years 3 months for D1. I also add 3 months to his starting point for deterrence of his recidivism for theft. D1’s starting point is 2 years 6 months. D2 was quick to step in in support. I take a starting point of 1 year 9 months for her. One-third off for the timely plea of guilty, the sentence is 20 months for D1 and 14 months for D2. 19.The two burglaries were distinct incidents spaced out in 14 hours. By totality, I make the following adjustment:
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