Case Document

100%Judiciary

DCCC 1159/2018

[2019] HKDC 900

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1159 OF 2018

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	HKSAR
	v
	YEUNG Kit	(D1)
	HON Kin-ching	(D2)

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Before:

HH Judge E. Yip

Date:

12^th June 2019 at 11:07 am

Present:	Mr King CHAN, Public Prosecutor, of the Department of Justice, for HKSAR
	Ms CHOW Hoi Ling Juliana, instructed by M/s Chong & Yen assigned by DLA for D1
	Miss CHAN Man Yee Cannise, instructed by M/s Y.K. Lau & Chu assigned by DLA for D2

Offence:

[1], [3], [5] & [6] Burglary (入屋犯法罪)

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Reasons for Sentence

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Charges and facts

1.D1 pleads guilty to a joint charge of burglary with D2 (Charge 6). D2 pleads guilty to 3 single charges of burglary (Charges 1, 3 and 5) and one joint charge of burglary with D1 (Charge 6).

Facts for Charge 1

2.YIM Fuk-ying (“PW1”) and her husband had been operating a shop called “Hoi Ming Candy Shop” located at Shop B, Ground Floor, No. 404 Castle Peak Road – Kwai Chung, Kwai Chung, New Territories, Hong Kong (“Hoi Ming”). Hoi Ming had one entrance secured by a rolling shutter with a pad lock. Only PW1 and her husband had the keys to Hoi Ming.

3.At around 7:30 p.m. on 14 July 2018, PW1 secured the rolling shutter and left Hoi Ming. PW1 returned at around 10:00 a.m. on 16 July 2018 and found that the rolling shutter had been prized open. Upon checking, 2 bags of dried fish maw (valued at $100,000 in total) and cash of $2,000 were missing.

4.Under caution for this incident, D2 admitted:

(a) On 16 July 2018, D2 drove another person to Shek Pai Street near Castle Peak Road where the said person alighted. The said person told D2 to wait for him (the said person) there and to call him (the said person) if he (D2) saw any person or police around.

(b) After a while, the said person returned to D2’s taxi, with a bag of dried fish maw and some miscellaneous items.

(c) A few days later, the said person gave $2,000 to D2.

5.CCTV at D2’s residence captured the said person and D2 together in the lift with a big plastic bag at around 4:42 a.m. on 16 July 2018.

6.At all material times, D2, together with the said person, entered Hoi Ming as trespassers and stole from therein.

Facts for Charge 3

7.PAK Yuk-kiu (“PW2”) was employed as a cashier at “Ngan Lung Restaurant” located at Ground Floor, No. 122 Chung On Street, Tsuen Wan, New Territories, Hong Kong (“Ngan Lung”). At around 9:30 p.m. on 24 July 2018, a staff member tecured the front and rear gates before leaving. At around 5:20 a.m. on 25 July 2018, a staff member returned and found that the rear gate lock was malfunctioning as it could be opened without a key. PW2 found prize marks at the cashier drawer. After checking, cash of $11,900 was missing.

8.Under caution for this incident, D2 admitted that:

(a) On 25 July 2018, a person requested him to pick him (the said person) up. D2 drove the said person to Tsuen Wan where the said person alighted. The said person said he (the said person) had to do something and told D2 to wait for him (the said person) there and to call him (the said person) if he (D2) saw any police around.

(b) The said person returned to D2’s taxi after 20 to 25 minutes. Later that night, the said person gave around $300 to D2 as taxi rent.

9.At all material times, D2, together with the said person, entered Ngan Lung as trespassers and stole from therein.

Facts for Charge 5

10.HO Wan-fung (“PW3”) worked at a restaurant called “Wan Kwai Heung” located at Shop No. 4, Ground Floor, Wai Wah Centre, Nos. 11-17 Sha Tin Centre Street, Sha Tin, New Territories, Hong Kong (“Wan Kwai Heung”). At around 12:01 a.m. on 8 August 2018, a staff member secured the 2 front gates and left. PW3 returned at around 8:00 a.m. on 8 August 2018 and found that the front rolling shutter was prized open. There were signs of ransacking inside. After checking, cash of $4,200 and one “LENOVO” tablet computer (valued at $2,000) were missing. The estimated cost of repair of the front rolling shutter was around $1,500.

11.CCTV in Wan Kwai Heung captured a male wearing a cap and a face mask inside at around 3:48 a.m. on 8 August 2018. CCTV at D2’s residence captured D2 and another person in the lift together at around 4:51 a.m. on 8 August 2018.

12.Under caution for this incident, D2 admitted that:

(a) On 8 August 2018, a person requested D2 to pick him up. D2 drove the said person to Sha Tin where the said person alighted. Again, the said person said he (the said person) had to do something and told D2 to wait for him (the said person) there and to call him (the said person) if he (D2) saw any police around.

(b) the said person returned to D2’s taxi after 20 to 25 minutes. Later that night, the said person gave $500 to D2 as taxi rent.

13.At all material times, D2, together with the said person, entered Wan Kwai Heung as trespassers and stole from therein.

Facts for Charge 6

14.YU Ka-chun (“PW4”) was one of the proprietors of a restaurant called “Unity Ramen” located at Shop Nos. 1-2, Ground Floor, Kam Fung Court, No. 18 Tai Uk Street, Tsuen Wan, New Territories, Hong Kong (“Unity Ramen”). Rolling shutters with padlocks were installed at the front door. At around 11:15 p.m. on 2 September 2018, PW4 secured the rolling shutters before leaving.

15.At around 5:11 a.m. on 3 September 2018, police spotted D1, wearing a face mask, walking towards Unity Ramen whilst looking around. D1 then prized open the rolling shutters. D1 entered Unity Ramen. At around 5:23 a.m., D1 came out of Unity Ramen and walked away with a white bag and a dark coloured bag. Police gave chase. D1 threw away the 2 bags, 1 pair of gloves, 1 crowbar and 1 screwdriver. D1 was intercepted. Upon search, 1 torch and $978 cash was found inside the waist-bag on his person.

16.The rolling shutters of Unity Ramen were left half open with prize marks. There were ransacking signs inside Unity Ramen. At around 5:45 a.m. on 3 September 2018, PW4 was informed by the police that Unity Ramen had been burgled. Upon checking, the following were found to be taken away from Unity Ramen: 7 packs of dried seaweed (valued at $1,400), 2 plastic bags, 4 batteries (valued at $10), 1 bottle of wine (valued at $300), 5 wine glasses, cash of $7,590, 1 recycling bag in black colour, 2 bags and 1 hat. These stolen properties were all recovered at the scene. The estimated cost of repair of the rolling shutters was $1,500.

17.Under caution, D1 admitted that he committed the burglary at Unity Ramen. At a video-recorded interview, D1 admitted that:

(a) At around 1:00 a.m. on 3 September 2018, he called D2 asking him (D2) to pick him (D1) up at Kwai Hing to drive around. He then got onto D2’s vehicle with a crowbar, a hammer and a screwdriver. At around 4:00 a.m., they arrived in Tsuen Wan. He alighted from D2’s taxi with the crowbar and the screwdriver while asking D2 to wait for him there.

(b) He then walked around and picked Unity Ramen. He used the crowbar to prize open the rolling shutters at the front door. He wore gloves at the time. He then entered Unity Ramen and took some money from the cashier, some dried seaweed, a bottle of wine and some other items.

(c) When he left Unity Ramen, someone asked him to stop. He ran away whilst throwing away the stolen property and his tools.

18.At about the same time at around 5:20 a.m., D2 was spotted in a taxi (registration mark KF 3071) near Unity Ramen. D2 was arrested at the scene as well. Under caution, D2 admitted that he drove D1 to commit the burglary and acted as a lookout for D1. D1 would pay him $300 – $500 as the taxi rent afterwards. Upon search of D2’s taxi, a racket bag, a hammer and a crowbar were seized. Under caution, D2 admitted that it was D1 who placed these items in the taxi. At a video-recorded interview, D2 admitted that:

(a) D2 was a night shift taxi driver. At around 11:00 p.m. on 2 September 2018, he was driving a taxi bearing registration mark KF3071.

(b) After a while, D1 called D2 asking D2 to pick D1 up in Kwai Hing. D1 then boarded the taxi. They went to Kwun Tong, and later went to Tsuen Wan.

(c) At around 5:00 a.m. on 3 September 2018, they arrived in Tsuen Wan. D1 alighted from the taxi and asked D2 to wait for him there. If D2 saw anyone, D2 should call D1. Due to previous similar experiences, D2 believed that D1 was asking him to act as a lookout for D1 to commit the burglary.

19.At all material times, D1 and D2 entered Unity Ramen as trespassers and stole from therein.

Personal background and mitigation put forward

20.D1 just turns 54 today. He had 12 records in 8 court cases. Among them were 2 for burglary, for which he was sentenced to 2 years 2 months in 2011 and to 29 months in 2016. He was therefore a repeat burglar. There is no dispute that this is an aggravating factor in his sentence. Another aggravating factor is the joint enterprise. He was recently married. He intends to stay away from all criminal activities in future. He wants to look after his mother, who is in an elderly home.

21.D2 is also 54 years of age. He had 4 records in 2 court cases. They all related to dangerous drugs. I am informed in mitigation that he was a minibus driver up to 2013. Afterwards he was diagnosed with diabetes and hepatitis. He could not work for long, so he had to take comprehensive social assistance. He sometimes drove night shift taxi to supplement his income. He came to know D1 through playing mahjong since early 2018. He acted as the driver and lookout for D1 to commit the offences. His reward was between $300 and $2,000 each time. The aggravating factor in his sentence is the joint enterprise.

Sentencing considerations

22.The proper starting point for non-domestic premises shall be 2 years’ 6 months’ imprisonment for a first offender of full age in the absence of aggravating factors (R v Wong Man [1993] 1 HKC 80; HKSAR v Sim Ka-wing [2001] HKCA 169).

23.Where previous penalties have apparently failed to deter him from repeat offending, the court has a duty to protect the public by imposing sentences of more deterrence (HKSAR v Chan Pui-chi [1992] 2 HKLRD 830).

Sentencing the Defendants

24.D1 faces only Charge 6. He was the instigator and principal burglar. He brought all the tools to break into the premises to steal. He was to keep all the proceeds, subject only to paying D2 a relatively small reward for acting as the driver and lookout. Besides, he is a repeat burglar. The basic starting point of 30 months has to be adjusted upwards to take into account first his role, by 6 months, and secondly his repeat offending, by 3 months.

25.From the starting point of 39 months, I give him a one-third discount for his plea of guilty. His sentence is 26 months.

26.D2 was being used by D1 as the driver and lookout in the burglaries. He took a relatively small reward, ie $2,000 in Charge 1, $300 in Charge 3, $500 in Charge 5, and expected to take $300 – $500 but for the arrest. I am aware of the aggravating feature of joint enterprise but I am of the view that his culpability in each instance can be adequately reflected by a starting point of 30 months. I give him a one-third discount for his pleas of guilty. The sentence is 20 months each.

27.By totality, I order 2 months of each charge to be consecutive to others. His total sentence for the 4 charges is therefore 26 months.