HKSAR v. Tran Thanh Dung

DCCC 752/2017

[2018] HKDC 246

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 752 OF 2017

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Reasons for Sentence

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Charge and facts

1.The Defendant pleads guilty to the burglary of 5^th Floor, Hoi Hing Building, 8 Kok Cheung Street, Tai Kok Tsui, Kowloon.  The unit was in a vacated building awaiting redevelopment and owned by the developer.  Only security staff were authorized to enter the building. 

2.On 15/7/2017 at about 6:10 pm, the police on patrol at the corridor of the 5^th Floor saw the Defendant there in a pair of gloves using a crowbar to prise a window frame in the corridor.  A search yielded the following from the bag he was carrying:

(1)   An axe;

(2)   A wrench;

(3)   A screwdriver;

(4)   A spanner;

(5)   A clamp;

(6)   A cutter knife;

(7)   3 aluminum bars;

(8)   5 padlocks;

(9)   And some copper wires.

3.After arrest and caution he said he wanted to prise the metal window frame for reselling. 

4.In the subsequent cautioned interview he added that the tools were all found on the street; he carried them with him because he slept under a footbridge in a park. 

5.The value of the metal window frame was $100.

6.He was a Form 8 recognizance holder. 

Application for reversal of plea

7.In the course of his solicitor’s mitigation on 13/12/2017, the Defendant expresses an intention to reverse the plea as he had only been collecting things in the building and had not “prised’ the window frame or anything.  As instructions have to be taken from the Defendant, his solicitor applies for an adjournment to prepare for the application.  I adjourn the application to 30/1/2018. 

8.On 30/1/2018, the Defendant is unrepresented and says he had not admitted the Amended Summary of Facts read out to him in court.    He says he had only been collecting things in the building and had not “prised’ the window frame or anything.  I note that is an unequivocal plea.  He makes no allegation of being subject to duress, inducement or misrepresentation.  I am satisfied that it is a plea entered voluntarily.  

Mitigation

9.I understand from his solicitor at the last hearing that the Defendant is now 36 years of age, a Vietnamese who came to Hong Kong in 2014 or 2015 to apply for non-refoulement.  In October 2017, his application was turned down.  He is now applying for judicial review. 

10.He had 4 records as follows:

(1)   Breach of condition of stay (sentenced to 2 months’ suspended sentence in 2003);

(2)   Illegal remaining in Hong Kong (sentenced to 15 months in 2014);

(3)   Indecency in public (sentenced to 7 days in April 2017);

(4)   Theft by shoplifting (sentenced to 4 days; he committed this theft and was given court bail during which he committed the present burglary).

11.I am informed that since his conviction for indecency in public in April 2017 his financial allowance from International Social Service Hong Kong had ceased.  He became a street sleeper and junk collector.  He now claims that he only came by the articles numbered (1) to (9) near the street level entry to the building in question some minutes before burglary.  He intended to sell the articles.  He did not intend to use them for burglary.   

12.I do not readily accept such claim.  These tools were of some value and use that people would not ordinarily discard on the street for passers-by to pick up for free. Besides, instead of selling these tools right away he hauled them all up to the 5^th Floor, a conduct seemingly both inconvenient and unnecessary. Such matters have to be explained.  I give time to his solicitor to advise the Defendant of the implications of a Newton hearing.  

13.His solicitor returns to inform me that the Defendant does not want to have a Newton hearing and will be content with oral submissions for such claim.  I reject such claim. 

Sentencing considerations

14.In R v Wong Man [1993] 1 HKC 80, the Court of Appeal states that the proper starting point for non-domestic premises would be 2 years 6 months’ imprisonment for a first offender of full age.  

15.In HKSAR v Sandagdorj Althankhuyag [2014] 1 HKC 206, the Court of Appeal regards an offence committed by a Form 8 recognizance holder an aggravating factor in sentence where it has a serious detrimental effect on the community at large or significant impact, prejudicially, on Hong Kong’s reputation. 

Sentencing the Defendant

16.He had brought along a collection of tools to go up to the 5^th Floor of a vacated building to commit a burglary which did not come off as he was stopped by the police in the act.  This being an unoccupied building, I lower the basic starting point to 2 years.  However, it is to be aggravated by his status as a Form 8 recognisance holder.  I add 4 months to the starting point.  The actual starting point is 2 years 4 months.  I do not increase his sentence further although he committed the present offence while on bail for theft by shoplifting as the latter incident was a relatively minor offence compared to the present one.  I give him a less than one-third discount despite his early indication of plea because he had taken up the court’s time in making a failed application for reversal of plea.  The sentence is 20 months.