HKSAR v. Tam Ying Pui, Chase

DCCC 702/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 702 OF 2017

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Reasons for Sentence

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Charges and facts

1.The Defendant plead guilty to burglary (1^st Charge) and possession of a dangerous drug (2^nd Charge). 

2.At about 3:38pm on 10 April 2017, Mr LEUNG Wing-tim (PW1), the security supervisor of Dragon Centre, No.37K Yen Chow Street, Sham Shui Po, Kowloon saw the Defendant in a surgical mask wandering at the carpark at B1 Floor of Dragon Centre (“the Carpark”). PW1 asked him to leave. PW1 then returned to the control room to monitor the CCTV of the Carpark and saw him still wandering in the Carpark, so he called the police.

3.At about 3:50 pm, PC 11620 (PW2) arrived at the Carpark and saw the Defendant in a surgical mask carrying a backpack and a white plastic bag wandering in the Carpark. PW2 then laid ambush and kept observing him. 

4.At about 3:57pm, the Defendant looked around outside the chiller plant room (“the Room”), which was on the same floor of the Carpark (ie B l Floor). PW2 saw him try to push open the door of the Room repeatedly and then gain entry into the Room after several pushes. Shortly afterwards, he came out of the Room with a roll of electrical wire valued at about HK$300 ("the Electrical Wire") on his shoulder and went hurriedly towards the staircase. PW2 followed him but lost sight of him.  PW2 asked his colleagues for assistance. 

5.At about 4:08pm, they intercepted him carrying the Electrical Wire at the staircase. 

6.PW2 conducted a search upon him and found in his trouser pocket a transparent resealable plastic bag containing 0.25 g of crystalline solid containing methamphetamine hydrochloride.

7.Bright Light Engineering Co. Ltd was the occupier of the Room, which was for storage of its property such as the Electrical Wire stolen by the Defendant. 

8.The CCTV footages of Dragon Centre captured the Defendant in a surgical mask entering the Room and making off with the Electrical Wire through the emergency door. 

Mitigation

9.The Defendant is 41 years of age, a divorced man of junior secondary education level.  He lives with his father and his son.  He had numerous criminal records.  Relevant to the present case are his 23 records for theft (sentenced between 1994 and 2013) and 1 for burglary (sentenced in 2014).  At the time of arrest, he was a collector of construction used materials for resale. 

Sentencing guidelines for non-domestic burglary

10.In A.G. v. Lui Kam-chi [1993] 1 HKC 215, the Court of Appeal states that the proper starting point for non-domestic premises shall be 2 ½ years’ imprisonment for a first offender of full age. 

11.A lower starting point is appropriate for an opportunistic burglar who is akin to a sneak thief who walks into open premises (HKSAR v Cheung To-ming [2006] 2 HKLRD 259). 

Sentencing this Defendant

12.He had been warned off the private premises but he insisted on staying to commit burglary. The surgical mask was a device to conceal his facial features in the burglary. He was trying his luck when he repeatedly pushed at the door of the Room.  He had no tools for forcible entry.  The stolen property was of small value.  His act was less culpable than a planned burglary but more culpable than a sneak thievery.   For the circumstances of the offence, I shall take a starting point of 21 months for the 1^st Charge.  Coupled with his recidivism for theft, I take an actual starting point of 27 months.  There is a one-third discount for his timely plea of guilty.  The sentence is 18 months. 

13.I take a starting point of 12 months for the 2^nd Charge.  There is a one-third discount for his timely plea of guilty.  The sentence is 8 months. 

14.By way of totality, the sentences shall be concurrent.