HKSAR v. Tsang Kwok Chung

DCCC 902/2017
[2018] HKDC 184

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 902 OF 2017

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REASONS FOR SENTENCE

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1.Defendant Tsang Kwok Chung stands convicted on his own plea of one charge of burglary contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

Admitted facts

2.The facts admitted by Mr Tsang can be summarized as follows.

3.In the early morning of 16 July 2017, PW1, a lady, moved into a mezzanine floor residential unit located in Hung Hom (hereinafter “the Premises”) that she had earlier rented.  Before she left on the same day, she secured the iron gate with an iron chain and padlock.

4.When she returned in the afternoon, she found the padlock prized and the iron chain broken.  There were signs of ransacking inside the Premises and the items subject matter of the charge to the total estimated value of $1,000 were found stolen.

5.CCTV installed near the Premises captured Mr Tsang climbing up and down the scaffolding of the subject building, and later entering the building with a male Cheung who was carrying a tool box and other items with him.  About half an hour later, the CCTV captured an air-conditioner falling onto the road which was then placed onto a push cart by Mr Tsang and moved back into the building by him with help from Cheung.

6.Three days later, in the vicinity, a police officer intercepted Mr Tsang on suspicion of the latter having been involved in the subject burglary. Realizing Mr Tsang was the man captured by CCTV to have been climbing up and down the scaffolding, he cautioned Mr Tsang about the burglary.

7.Under caution, Mr Tsang said he thought the Premises were unoccupied and therefore he prized the padlock with hammer and saw before entering the Premises.  He also admitted taking some items from inside and placing them in a cubicle in the same building.

8.Mr Tsang was arrested and under caution, he repeated that he thought the Premises were unoccupied and out of greed took some items from inside.

9.Mr Tsang then led the police to the cubicle where all the stolen items were recovered.  Mr Tsang also pointed to a hammer and a saw-blade there which he said had been used in the burglary.

10.Back at the station, Mr Tsang said under caution that he owned an engineering company in Tai Kok Tsui and Cheung had been working in his company for 3 years.

Criminal record

11.Mr Tsang’s criminal record is agreed.  He has been sentenced twice in 1993 and 1994 respectively for offences of assault; that was when he was in his teens.  I will treat him as a man of clear record.

Personal particulars

12.The following personal particulars of Mr Tsang are accepted.

13.Mr Tsang is aged 40 (39 at the time of the offence).  He was formally educated to F3.  After graduation, he opened a company installing and repairing appliances.  He was earning $40,000 a month.  He has never been to prison.  He resided also in Gillies Avenue South with his family members who included his wife (40) and daughter (15, a student).

Mitigation

14.The following is a brief summary of the mitigation.

15.Mr Joseph Lee of counsel instructed by Morley Chow Seto mitigated on Mr Tsang’s behalf.  Mr Lee submitted that Mr Tsang had been operating a company doing waterworks and air-conditioning repairs.  Before arrest, he was hiring two other persons.  He himself is a qualified person in terms of examining windows and performing electric works.

16.Mr Tsang’s father has passed away and mother has retired and is living with Mr Tsang’s younger brother.

17.Mr Tsang has lost his hearing in the right ear almost 20 years ago in an industrial accident.  He also has reading and speech problem.

18.Mr Lee submitted 5 mitigation letters written in Chinese.  Briefly the one written by Mr Tsang spoke of his remorse and how his acts have affected his family members; he would also apologize to the victim and offer compensation for her inconvenience.  He promises never to re-offend.

19.The second letter is written by Mrs Tsang, ie the wife.  She spoke of her husband as a filial son, good husband and father; how he had regretted his momentary wrongdoing and out of fear of adversely affecting the future of their academically strong daughter, he even suggested filing a divorce which was flatly rejected by her who would stand by her husband.

20.The daughter wrote the third letter.  She said however tired Mr Tsang was when returning home after a long day of work, he would chat with her.  They were like good friends.

21.The fourth letter was written by the mother.  She described Mr Tsang as a filial son who started work as an apprentice at age 15 and worked very hard every day; and how he had an industrial accident at about 20 which caused loss of hearing in one ear.  Later, he even went to study for an electrician’s licence after work.  Whenever she needed to see a doctor, he would accompany her to attend for medical appointment.

22.The fifth letter was written by a long-term friend Ms Liu.  She said that they have known each other for 30 years.  She described Mr Tsang as being a helpful, honest, and hardworking man without bad habits.  He was also a responsible man towards his clients.

23.Mr Lee also submitted 3 pieces of paper which show that Mr Tsang is a qualified electrician, window inspector and minor works contractor.

24.I note also some family members and friends of Mr Tsang are in court to support him.

25.Next, Mr Lee submitted a certificate of appreciation in recognition of Mr Tsang’s good conduct in returning lost property while being a party-time taxi-driver.

26.Lastly, Mr Lee submitted two letters from Queen Elizabeth Hospital to the instructing solicitors indicating that request for information relating to Mr Tsang had been made but due to lapse of time, no record could be recovered.

27.In terms of mitigating factors, Mr Lee has the following points to make.

28.First, Mr Lee submitted that it was an opportunistic burglary.  He said that according to the witness statement of the victim PW1 (not produced), although she had moved her property into the Premises, she herself had not yet moved in to live there.  This fact, coupled with a submission that most of the units in the building were empty (which submission was not accepted by the prosecution), said Mr Lee, supported his primary submission that this was an opportunistic burglary.

29.Mr Lee sought to prove by “objective material” that most of the units in the building known as 22 & 24 Gillies Avenue South (which housed both PW1’s Premises and Mr Tsang’s Cubicle) were in fact empty.  The “objective material” Mr Lee was talking about and indeed submitted were 6 photos purportedly taken by the cousin-in-law of Mr Tsang’s wife on 22 July 2017 and two pieces of newspaper cutting in Chinese.

30.By using the photos (principally the first), Mr Lee sought to argue by the absence of aircon in one or two units of the subject building (outer wall in light red) and the absence of hanging laundry that most units of the building were empty.  Mr Lee relied to a lesser extent on the fifth photo which merely shows a notice purportedly outside a gate on 5/F of No 22 saying the building and all vacant units belonged to a company.  What it doesn’t say of course is that all the units were vacant.

31.The two newspaper cuttings merely show that (a) Richfield Holdings (Tien Sang) had, together with Henderson, acquired 80% or above of the stakes in the building and (b) 50 Gillies Avenue South (purportedly where PW1 had been residing before the move) was the subject of a collapsed balcony incident.

32.Mr Lee continued to submit that at the relevant time, PW1 was not in the flat, that the value of items was not high, and the burglary was not pre-planned; that Mr Tsang was co-operative from the moment he was stopped.

33.Mr Lee said Mr Tsang had offered to PW1 full compensation for her inconvenience but PW1 indicated that she did not need compensation.

34.Lastly, Mr Lee submitted two case authorities: HKSAR v Chau Man Ying, CACC 439/2011, and HKSAR v Lau Yip, DCCC 504/2014 (a Chinese judgment).

Consideration of the submissions

35.I have no difficulty in rejecting the submission that most units of that building were in fact empty.  Mr Lee simply failed to discharge the burden which was on him to discharge in matters of mitigation on the balance of probabilities.

36.In any event, I cannot see how the burglary could be an opportunistic one.  The gate of PW1’s Premises were clearly locked with chain and padlock. Mr Tsang went there to break open the Premises with hammer and saw/saw-blade. He even enlisted the help of an innocent agent Cheung (his employee) to accomplish the burglary.

37.The facts in Chau Man Ying related to a vacated building awaiting redevelopment.  As a result of my finding, I do not see much relevance to the present case save one aspect.  There, the stolen property was of low value and would fit the description of property left behind by a previous occupant.  In the present case, the stolen property amounted to an estimated value of $1,000 and belong to the category of useful material.

38.In Lau Yip, the facts related to a building where 60% of the units had been purchased with a view to redevelopment.  The burgled unit had been so purchased and had been left vacant with door and gate left ajar and with a notice on the outside saying it had been purchased.  The sentencing judge adopted a starting point of 15 months and sentenced Lau to 9 months’ imprisonment on plea.

39.The facts in Lau Yip are very different to those of the present case and offer little assistance to me in my task.

Sentence

40.I have considered the mitigation submissions urged upon me by Mr Lee and have made certain findings in relation to some of them as detailed above.

41.The biggest mitigation is Mr Tsang’s plea of guilty.

42.The offer of compensation for PW1’s inconvenience, while applaudable, is clearly outweighed by the aggravating factor that Mr Tsang had enlisted the assistance of his innocent employee Cheung in completing the burglary.

43.The conventional starting point for burglary of domestic premises committed by a first offender of full age in the absence of aggravating or mitigating factors is 3 years’ imprisonment (see Attorney General v Lui Kam Chi [1993] 1 HKC 215).

44.I was tempted to enhance the starting point because of the aggravating factor but decided against it as an act of leniency towards Mr Tsang due in no small measure to the weight of the mitigation letters and the self-help attitude that he had displayed in the face of his handicap.

45.Mr Tsang indicated an early plea for which he is entitled to a one-third discount.

46.There are no other mitigating factors warranting a further discount.

47.I hope he will turn a new leaf after release from prison with the continuing support of his dear family members and friends.

48.Mr Tsang please stand.

49.I sentence Mr Tsang to a term of 2 years’ imprisonment.