HKSAR v. Ye Wenfei

DCCC 723/2017

[2018] HKDC 181

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 723 OF 2017

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REASONS FOR SENTENCE

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1.Defendant YE Wenfei stands convicted on his own plea of two charges, namely one charge of Burglary and one charge of Attempted Burglary.

2.Upon application by the Prosecution and with agreement from the Defence, a third charge – another charge of Attempted Burglary – has been ordered to be placed on court file not to be re-opened without the leave of this Court or the Court of Appeal.

Admitted facts

3.Mr Ye admitted the following facts.

4.In 2015, Mr Ye had worked in a pharmacy warehouse in Kwai Chung (hereinafter “the Premises”) as a warehouse worker for about two months before he left the employment.  During his employment, the pharmacy owner gave him access to the key to the Premises.

Charge 1

5.On 8 May 2017, Mr YE gained access to the Premises with a key and stole goods to the total value of HK$42,296.  Same day, the pharmacy owner found some goods missing and reported the case and changed the lock.

Charge 2

6.On 15 May 2017, Mr Ye tried to do it again; only this time the key did not work.  A staff member of a nearby shop saw what happened and recognized Mr Ye who then gave up and left.

Arrest and Caution

7.On 22 May 2017, Mr Ye was arrested and, under caution, he admitted the following:-

(a) During his employment, he duplicated the key to the Premises without the employer’s consent;

(b) he entered the Premises with the duplicate key and stole the goods subject matter of Charge 1 and sold them in the Mainland for RMB18,000; and

(c) in relation to the subject matter of Charge 2, he unsuccessfully tried to open the door to the Premises with the same key; as a result, he threw away the key.

Criminal record

8.Mr Ye has been sentenced three times for 4 offences.  In June 2015, he was sentenced for two thefts to 2 months’ imprisonment suspended for 2 years. In October 2016, he was sentenced on the same day for two different cases of attempting to export prohibited articles without licence; and the total sentence was 3 months’ imprisonment suspended for 2 years; it should be noted that on that occasion, the earlier suspended sentence was not activated.

Personal particulars

9.According to the antecedents statement, Mr Ye is aged 22 (21 at the time of the offences), single, and a HK permanent resident who before arrest normally resided in Shenzhen alone.  His natural parents divorced in 2003 and his mother re-married in 2008.

10.Mr Ye was educated to secondary 6 level in the Mainland and has never been to prison.

Mitigation

11.Mr Karbhari of solicitor assigned by the Director of Legal Aid mitigated on Mr Ye’s behalf.  He relied on a set of written mitigation submissions supplemented by a number of oral remarks.  In essence, Mr Karbhari submitted that Mr Ye is deeply remorseful and was very cooperative with the police and made a full confession.  He further submitted that Mr Ye, having been born in the Mainland, came to Hong Kong in 2014 and had adjustment problems; that eventually Mr Ye was able to find employment as a warehouse worker earning $9,000 a month from which he contributed $3,000 towards his family.

12.Mr Karbhari continued to submit that Mr Ye was a product of a broken family his natural parents having been divorced when he was only 8 years old, that Mr Ye is still young and promises to lead a new life free from wrongdoings.

13.Regarding the suspended sentences, Mr Karbhari submitted that there had been a long lapse of time since the suspensions were ordered, and that the second and third suspensions related to dissimilar offences.

14.Mr Karbhari realistically does not urge for a sentence other than a custodial one but asked the court to consider totality for the two offences.

Sentence

15.I have considered the mitigation submissions made by Mr Karbhari.

16.Regarding his previous suspended sentences, I note that the suspension period of the first one was about to expire about one month after the present offences, and that the subject matters of the second and third are dissimilar to his present offences.

17.Given Mr Ye’s young age and the fact that this will be his first time in prison, I will not activate any of his suspended sentences.  I do not want to see a young person as Mr Ye, a first-time inmate, to spend more time than is necessary inside a prison.  I hope that he will take this opportunity afforded by the court to reform himself.  However, a certain term of imprisonment will be inevitable as recognized by Mr Karbhari.

18.The conventional sentence for burglary of non-domestic premises without aggravating or mitigating features is two and a half years’ imprisonment (see Attorney General v Lui Kam Chi [1993] 1 HKC 215, and HKSAR v Sim Ka Wing, CACC 450/2000).

19.In terms of sentence, there should be no difference for an attempted burglary (see HKSAR v Mohammad Farooq, CACC 406/2013).

20.This case has two aggravating features, namely “breach of trust” and “multiple offences of a similar nature committed at different times”.  For the former, I have borne in mind the principle espoused in HKSAR v Pakit Joni, CACC 10/2013.  For the latter, I would again rely on the Court of Appeal authority of Lui Kam Chi, supra.

21.For the aggravating feature of “breach of trust”, I will enhance the starting point by 3 months for each of the charges.  For the aggravating feature of “multiple offences etc”, I will not enhance the starting point for either charge; however, the overall sentence will have to be increased by making the individual sentences partly consecutive to each other.

22.For Charges 1 and 2, I will therefore each adopt a starting point of 2 years 9 months’ imprisonment.  Mr Ye had indicated an early plea of guilty to Charges 1 and 2, for which indication he is entitled to a one-third discount.

23.Mr Ye, please stand.

24.For Charge 1, I sentence Mr Ye to a sentence of 22 months.  For Charge 2, I sentence Mr Ye also to 22 months.  After considering the totality principle, I order that 3 months of the sentence for Charge 2 to run consecutively to that for Charge 1, making a total sentence of 25 months’ imprisonment.