HKSAR v. Lee Siu Hang

DCCC 621/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 621 OF 2017

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Reasons for Sentence

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1.The defendant pleaded guilty to two charges of burglary[1]. Both involved non-domestic premises.

Summary of facts

2.Renovation tools were stolen from two different shops under renovation on two different days.

Charge 1: Shop 92

3.The burgled premises in charge 1 was Shop 92 on the ground floor of Kwong Fuk Estate Market in Tai Po, where plumbing work was being conducted.

4.At the material time, Shop 92 was surrounded by wooden boards. Entrance was through a wooden door secured by a combination lock.

5.Mr Chu, the person in charge of the renovation of Shop 92, left the shop at around 3pm on 22^nd April 2017 after closing and locking the iron box which housed two electric hydraulic drills.

6.The drills were found to be missing upon Mr Chu returning at 9am 3 days later on 25^th April. The total value of the tools stolen from Shop 92 was about $5,400.

Charge 2: Shop R2

7.The burgled premises in charge 2 was Shop R2 on the 3/F of Kwong Fuk Commercial Centre in Tai Po.

8.Shop R2 was under renovation between 16^th and 28^th April 2017. Again, wooden boards were put up all around the shop. Entrance was through a wooden door secured with a combination padlock.

9.Mr Chung, a worker on the site, secured the padlock and left at around 10pm on 26^th April. He returned at around 8:30am the following day and was told that other workers were unable to open the padlock and had to pry it open.

10.Subsequently, some tools were found missing from the Shop R2 site. Two of the lost tools were later recovered from the defendant’s residence. The total value of the tools stolen from Shop R2 was about $44,500.

11.CCTV footage captured the burglary taking place between 2:38am and 4:29am on 27^th April. A person was captured going in and out of Shop R2 for 5 times each in this period.

The defendant’s arrest

12.The defendant was intercepted on the street at around 2:18am on 1^st May. Under caution, the defendant admitted that he was in Kwong Fuk Commercial Centre at around 2am on 27^th April. He claimed that he had walked pass 3/f of the Centre and saw that a shop was under renovation. Since he had lost some tools before, he decided to enter the shop to see if there were any tools useful to him. He ended up taking some electric guns and drills home.

13.The defendant was arrested for the burglary of Shop R2 (charge 2). Under further caution, the defendant said he intended to steal the tools for his own use.

House search

14.The defendant was brought back to his place of residence and a search was conducted. An electric grinder and a hydraulic drill which were stolen from Shop R2 were recovered.

15.At a later interview, the defendant confirmed that he had pulled open the padlock on the wooden door of Shop R2 and had entered to steal the tools in question. He took some electric guns, drills and the electric grinder and hydraulic drill. He took the last two items home but left the rest in a flowerbed in a garden near Kwong Yee House. When he returned to the flowerbed the following morning, the tools he left there were already gone.

16.In relation to Shop 92 (charge 1), the defendant said in the cautioned interview that he stole from the shop because he lived nearby and it was convenient for him to do so. The defendant claimed that the wooden door was not locked and he just pushed open the door and entered the shop at around 1am on 24^th April.

17.When inside, he found an iron box and so he prized open the box with an iron bar. He stole two electric drills inside and sold them for $400.

Previous convictions

18.The defendant has 7 previous convictions from 6 appearances in court. 4 of those convictions were for theft and one for going equipped for stealing.

19.The defendant’s last convictions were for cruelty of animal and possession of an offensive weapon in a public place when he was sentenced to a total of 12 months’ imprisonment on 25^th October 2016. He was last released from jail on 27^th January 2017. The defendant, therefore, committed the present offences around 3 months after his release.

Mitigation

20.The defendant is 28, born in Hong Kong, educated up to Form 4. He worked as a construction site worker after his last discharge from prison, earning about $10,000 per month. He would give about $5,000 to his mother, who might be suffering from stomach cancer.

21.The defendant is remorseful, he admitted to the offences at the first instance. He was cooperative with the Police. Some stolen properties had been recovered. The offences are not of very sophisticated nature. The defendant wishes to take care of his sick mother upon his release.

Sentence

22.It is trite law that burglary of a non-domestic premises by a first offender without any aggravating or mitigating features would attract a sentence of 2 and a half years’ imprisonment[2].

23.There is no evidence to suggest that the defendant had used any tools to pry open the locks used to secure the wooden perimeters of the two premises.

24.There is evidence of the use of an iron bar to pry open the iron box inside Shop 92 of charge 1. The summary of facts does not disclose whether the defendant had brought the iron bar or it was found on site. It was submitted by Mr Chan for the defendant that it was found on site. There is no reason to not accept this version of fact, and I will sentence the defendant on this basis.

25.That being the case, I find that there is not much sophistication in the execution of the two burglaries to warrant an enhancement of sentence on that basis.

Opportunistic crime?

26.It was not put forward in mitigation that the burglaries were opportunistic crimes. If it had been advanced as a mitigating factor, I would have found that the circumstances of the burglaries would suggest that they were not opportunistic crimes.

Starting point

27.Following the above mentioned sentencing guidelines, I adopt a starting point of 30 months’ imprisonment for both charges.

Aggravating factor

28.I find that there is one aggravating factor applicable to both burglaries.

29.The defendant was last discharged from prison on 27^th January 2017. He committed the present offences just about 3 months later. The previous sentence was not sufficient to deter him from breaking the law again.

30.For this aggravating factor, I will increase the starting point from 30 to 33 months’ imprisonment for each of the two charges.

Sentence after discount

31.I find that the only mitigating factor is the defendant’s timely pleas of guilty. For this, he is granted the full one-third discount and sentenced to 22 months’ imprisonment for each of the two charges after plea.

Totality

32.The two burglaries took place on different days and at different locations. There are no connections between them except for the defendant’s involvement.

33.Taking a step back, I will order 8 months of the sentence in charge 2 to be served consecutively to the sentence in charge 1, the balance concurrently. I find that the resulting sentence will not have a crushing effect on the defendant.

34.The total final sentence is 30 months’ imprisonment.