HKSAR v. Wong Ip Yat

DCCC 399/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 406 OF 2017

-------------------------

-------------------------

-----------------------------------------

REASONS FOR SENTENCE

-----------------------------------------

1.The defendant appeared before me and pleaded guilty to a single charge of “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

THE FACTS

2.At about 1130 hours on 8 January 2017, Mr Cheng(“PW1”) left the House at Tan Cheung Village, Tan Cheung Road, Sai Keung (“the House”) intact. At about 2330 hours on the same day, PW1 returned to the House and found signs of ransacking. Upon a search of the House, PW1 saw the defendant climbing over the metal fence surrendering the House and escaped towards Sai Kung town area.

3.PW1 chased after the defendant while shouting for assistance.  Mr Stuart (“PW2”), who was a neighbour, assisted in the chasing. They finally subdued the defendant. Case was reported.

4.Two windows, one wooden door and one safe in the House were damaged in the burglary. The repair costs for the damaged windows and the wooden door is about $3,000 and the cost of the damaged safe is $10,000.

5.At the time of arrest, the defendant was wearing a cap, a pair of gloves and was carrying a rucksack. Stolen properties were found inside the defendant’s rucksack.  They included one bag, one debt card, cash of 1207.05 Thai Baht, one wallet, cash $55.5 Hong Kong currency, cash of ¥80 Renminbi, some name cards and paper, 3 red packets, some coins, one piece of part of a safe, one commemorative banknote and one envelope. The police could also find tools including portable electric drill, two wrenches, two pliers, three torches and five screwdrivers inside the rucksack.

6.The damaged safe which was originally put inside the bedroom was found lying on the ground outside the House.

7.Upon arrest and under caution, the defendant admitted that he burgled because he was in need of money and he had only taken two wallets. He also admitted that he took two towels at the House to wipe his sweat. He threw them away in the rubbish bin after realizing that his sweat on the two towels might disclose his identity.

CRIMINAL RECORD AND BACKGROUND OF THE DEFENDANT

8.The defendant is aged 42.   He completed Form 1 education in Hong Kong. He has been working as a causal construction and renovation worker earning about $10,000 per month.  His wife has deserted the family in May 2015, leaving him to take care of a son of 16 years old studying in Form 4 now. He was unemployed for 8 days at the time of the offence.

9.In the past, he had appeared in the courts in Hong Kong on 15 occasions with 23 convictions.  He had been convicted for six occasions for burglary. Three of these convictions took place when he was 13 and 15 years old. His last conviction of burglary was in 1997. He has five previous convictions of “Possession of dangerous drugs.” His last conviction was in 2015 for a case of “Common assault” and “Criminal damage” for which he was sentenced to 14 days’ imprisonment and a fine. 

MITIGATION

10.Mr Cheng, who appeared for the defendant, has kindly prepared a full written mitigation on the defendant’s behalf. Mr Cheng said the defendant’s major mitigation is his plea of guilty at the very first opportunity.  He co-operated with the police fully and admitted the offence. 

11.Mr Cheng submitted that the starting point for burglary of domestic premises is 3 years’ imprisonment. However, he urged the court not to adjust the sentence upward because the last previous conviction for burglary was in 1997 which is 20 years from now.

12.Mr Cheng submitted that the defendant is not a professional burglar. He committed the offence alone. The charge did not involve substantial property.

13.Mr Cheng stressed the fact that the defendant was very remorseful and pleaded guilty in the first available opportunity and thereby saving court’s time. 

14.Mr Ng also submitted that there is no aggravating factor present in this case.  The victim was not present at the time of the offence. No physical violence, threat and injury was caused to the victim. The defendant made full confession to the police.

SENTENCING CONSIDERATIONS

15.In sentencing the defendant, I have borne in mind the facts of this case, the nature of the charges, and all the matters urged on the defendant’s behalf by Mr Cheng together with the defendant’s mitigation letter.

16.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 conviction of similar nature, and (6) the offender commits multiple offences : see HKSAR v Cheung Wai Kai CACC 338/2007 at paragraph 15.

17.As rightly pointed out by Mr Cheng, the starting point for burglary of domestic premises is 3 years’ imprisonment.  The defendant was sentenced to 2 years’ imprisonment in his last conviction for burglary in 1997. Since it happened 20 years ago, I would not enhance the sentence by this element. However, there are further aggravating factors. I find that the defendant was a professional burglar. The offence was carefully planned with the use of equipment like electric drill, wrenches, pliers, torches and screwdrivers. Two windows, one wooden door and one safe in the House were damaged from the burglary. The safe had been moved out of the House.  It was just lucky that the defendant could not break the safe open, otherwise substantial properties might have been stolen.    In my judgment, this factor calls for a higher starting point. I enhance the starting point by 3 months to 39 months. The defendant is entitled to one-third reduction for his guilty pleas.  That will bring his sentence down to 26 months.

18.There are no humanitarian grounds or exceptional circumstances which can justify the suspension of the sentence.  For the reasons given, I sentence the defendant to 2 years and 2 months’ imprisonment.

19.Undoubtedly, the defendant’s son will suffer, but this consequence is something which he should have considered before he embarked on committed the offence.