HKSAR v. Sze Kam Hung and Another

DCCC 822/2018

[2019] HKDC 499

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 822 OF 2018

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Reasons for Sentence

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1.Defendants have both pleaded guilty to two charges of burglary. The burglaries were both committed at the same location, at about the same time, on 18 July 2018.

2.The essential facts that the prosecution rely on are set out in their summary, which has been agreed, and I have convicted on the basis of that summary.

3.Briefly, what the defendants have admitted to is the burglary of premises described as “Fast Computer Limited”, which was at the Choi Wan Estate in Kowloon, and was locked up with what is described as a “number padlock” on 18 July at about 1100 hours, which is 11 in the morning.

4.When the premises was seen again, a burglary had occurred.  The padlock was missing, the office had been ransacked, and various items had been taken that were worth about $12,500-odd, and the defendants have been captured on CCTV in the early hours of the morning of 18 July, around the premises and also dividing cash in the lift of the building.

5.As a result of that, the police arrested the 1st defendant and he said he had gone to those premises with the 2nd defendant at about 3 o’clock in the morning on 18 July to commit the burglary and that they had entered the premises on more than one occasion.

6.As a result of that admission, the 1st defendant was arrested.  He then made a further admission under caution that they had shared about $1,500 worth of goods and an earphone (wireless) taken from the burglary were found in his premises.

7.The 1st defendant then made a video recorded interview and gave more detail of how the burglary was occurred and the motivation for doing it.  The 1st defendant said he actually owed the 2nd defendant, who he described as “Ah-pui”, he had owed him money, and had asked him to unlock the lock so he, the 1st defendant, could commit the burglary. They had gone together to the premises, taken items away, shared about $1,500 worth of cash.  They had gone down the lift but they had returned to the office, it appears to be not many minutes later, and taken away some more goods.

8.The 2nd defendant was arrested in August of 2018 and he also made a video recorded interview, where he made a set of admissions of his involvement in the burglary, or the burglaries, of that premises that morning, and he agreed that he had gone with the 1st defendant to commit the burglaries.  He said there had been cash and also goods had been found and cash had been taken and shared.

9.As far as those facts are concerned, clearly they outline the two burglary charges that the defendants had pleaded guilty to.

10.As far as the background of the defendants is concerned, the 1st defendant is now aged 43.  He was working as logistics worker before his arrest.  I am told that he is married but separated and has a son, who is with his paternal grandmother.

11.The 1st defendant does have some relevant convictions.  He has a number of drug convictions from 2000 onwards up to about 2004, and in 2014 committed both a robbery, or was convicted in any event, for robbery and also three burglaries and going equipped for stealing.  He received sentences of up to 20 months’ imprisonment for the burglaries, but, in any event, there was a substantial period of imprisonment served in 2014, which led to the defendant being discharged from imprisonment on 13 September 2016.

12.The 2nd defendant is aged 45.  He also has been married and has children.  He has a 17-year-old son.  He was unemployed for a while before the offence due to a restructuring in the company that he was working for.  The 2nd defendant has one previous conviction for theft back in 1990, a long time ago, for which he was sentenced to probation, and that conviction is now regarded as a spent conviction for the purposes of this court.

13.His antecedents indicate he has been a drug addict to heroin since 2006.  That may provide some reason why he would commit criminal offences - in order to get money, if he was unemployed.

14.As far as the approach to sentence is concerned, this is a non-domestic premises burglary.  The normal starting point for sentence for an offence of that nature for a person of clear record after trial will be a sentence of 30 months’ imprisonment, and that is appropriate to both charges.

15.There are, in respect of the defendants, certain aggravating factors in relation to this burglary, and I will deal with them individually.

16.As far as the 1st defendant is concerned, there are in fact two aggravating factors:  one is the fact that the offence was committed jointly with another person and the second aggravating factor is that he has a previous conviction for the same offence back in 2014, which is fairly recent.

17.As far as the 2nd defendant is concerned, he has the aggravating factor of being involved in a joint offence with the 1st defendant, and those aggravating factors would lead and do lead to an enhancement of the starting point for sentence in respect of each defendant.

18.As far as mitigating factors, both defendants have the substantial mitigating factor of their pleas of guilty and their co-operation with the police shown from an early stage.  They are clearly entitled, both of them, to a full one-third discount from the original starting point.

19.Having regard to the 1st defendant, on each charge, the starting point will be the same.  As I said already, there are two aggravating factors, which lead to a starting point, once they are factored into the offences, of 36 months’ imprisonment. 

20.The defendant is entitled to his full one-third discount on that.  So, in respect of each charge, the sentence of imprisonment would be recorded as being 24 months’ imprisonment.

21.As far as the 2nd defendant is concerned, there is the one aggravating factor, which leads to a starting point on each offence of 33 months’ imprisonment.  After the one-third discount is factored in, that leads to a sentence of 22 months’ imprisonment on each offence.

22.Now, of course, there are two offences committed by each defendant here.  In theory, those sentences can be served consecutively because they are separate offences.  However, one has to look in practice at what this was.  One has to look at what the overall appropriate totality for sentence should be.

23.This is a burglary committed at the same place at almost the same time.  The separation, is something like 15 minutes between the offences.  In fact, going back to the facts, one of the defendants said it would be something like 10 minutes.  I think, realistically, one should approach this as being one offence committed by these men at round about the same time.  I think, realistically, and taking a practical approach, I should treat these sentences as being served concurrently by the defendants.

24.So the sentence for the 1st defendant would be one of 24 months’ imprisonment and the 2nd defendant one of 22 months’ imprisonment.