HKSAR v. Tong Kin Yan, Dee

DCCC 448/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 448 OF 2017

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

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

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

Reasons for Sentence

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

1.Yes, defendant has pleaded guilty to two charges of burglary. The burglaries occurred on the same day and in premises which were in close proximity to one another. The first burglary was at the Tin Hau Temple in Yuen Long, and the second burglary was at the club house of Chun Hing New Village in Yuen Long.

2.As far as the first burglary is concerned, the premises had been secured, and donation boxes were inside the premises which were locked.  It was found on the morning of the 21st that the temple had been entered and there were signs of ransacking.  The two donation boxes had been prised open.  $3,000 inside the donation boxes had been taken.  The defendant was later to admit that he was the culprit in the burglary.  The defendant was in fact seen on CCTV footage in the area and in fact is resident in the area as well.

3.The second burglary occurred at the club house of Chun Hing New Village.  The defendant is a resident of the New Village and in fact on the evening of 20 March was seen by one of the security guards inside the club house.  Another security guard later in the next morning found evidence that the club house had been entered illegally.  A window was found open and some prising signs were found on a door.  The defendant was subsequently arrested based on the CCTV footage and also the identification of him by the security guard.  

4.As I said, he admitted entering the temple through openings in the roof, opening the donation boxes and stealing the $3,000 inside them.  He entered the club house later, which was located near his residence, with the intention of stealing.  He knew it closed in the early evening and that he thought there would be cash stored there.  He entered the club house through a window, tried to open the door of the office but was not successful, and he eventually saw the security guard on his way out.  The defendant admits all that.

5.As far as these premises are concerned, the court should treat them as non-residential premises. 

6.Defendant is aged 33.  He is single, educated to secondary-school level and has worked as a transport worker earning about $8,000 a month.  He has some previous convictions dating back to 1998.  He has two similar convictions in 2003 when he was sentenced to a training centre and that is -- and he was convicted of offences in 2008 and then after that in 2016 when he was sentenced to imprisonment for theft of 7 years.     

7.As far as mitigation is concerned, it is said the defendant has made full admission on arrest, has pleaded guilty at an early opportunity to both charges.  The burglaries were petty in that property of some $3,000 was stolen.  There was no damage or overall loss to the property, of course as not to take the earlier burglaries as an aggravating factor due to the fact they were committed some considerable time ago.  They have been some 14 years ago.

8.As far as sentencing in burglary cases is concerned, there is a guideline sentence.  A person of clear record after trial convicted of a non-residential-premises burglary can expect a starting point for sentence of 30 months’ imprisonment.  I agree that in the circumstances of this particular case and the age of the burglary convictions, they are not an aggravating factor. 

9.Having regard to the overall nature of these burglaries, I will take a starting point for sentence in respect of both charges at 30 months’ imprisonment, and I will credit the defendant for his plea of guilty with a one-third deduction from that, leaving a sentence on each of those two charges, on Charge 1 and 2, of 20 months’ imprisonment on each charge. 

10.The burglaries are separate, identifiable burglaries, and the sentences could be served consecutively in whole or in part.  The burglaries were committed on the same evening, and the rewards from those burglaries are comparatively minor.  I consider the overall sentence for the defendant on these two charges of burglary should be one of 24 months’ imprisonment.  I will achieve that by ordering that 4 months of the 2nd charge be served consecutively to the 1st charge and the balance concurrently.