HKSAR v. Au Man Tai

DCCC 1128/2018

[2019] HKDC 1226

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1128 OF 2018

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REASONS FOR SENTENCE

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1.The defendant has pleaded guilty to four charges of burglary of non-domestic premises.

2.The facts admitted by the defendant can be summarised as follows.

Charge 1

3.The offence took place on 18 May 2018 at a kindergarten.  In the morning of 19 May 2018, when a staff returned to the kindergarten, she found $30,000 cash belonging to the kindergarten and 84 cheques collected from students’ parents were missing.  The parents were able to stop the cheques. 

4.CCTV installed in the school showed that at around 2030 hours on 18 May 2018 a male used some hard objects to enter from the emergency exit.  He then ransacked the staffroom and left.

Charge 2

5.The offence took place on 24 May 2018 at a primary school.  When a staff returned to the school in the morning, she found $5,800 cash, which belonged to the school, missing from the drawers. 

6.CCTV footages showed a male gained entry through the window at music teaching room on the second floor of the school.  The male then went to the first floor and reached the staffroom. 

7.One white glove and one piece of red-coloured piano cover were found at the scene and seized by the police.

Charge 3

8.The offence was committed on 21 May 2018 at the Chinese University of Hong Kong.  In the morning of 22 May, a staff returned and found a backdoor of the staff club of the university had been prized.  There were signs of ransacking of the staff club.  Cash of $9,700 and a mobile phone were missing. 

9.About three door locks were damaged, with repair costs estimated to be $1,500.  Inquiry revealed that the door at the staff club could be opened easily without a strong push.

Charge 4

10.The offence took place on 14 June 2018.  When a staff returned to the nursery school for work, she found signs of ransacking of the premises.  Cash of $3,800 was found missing. 

11.CCTV footages showed the burglar gained entry through the window of the children’s toilet and ransacked therein. 

12.The lock on the side door was damaged, with repair costs estimated to be $900.  A pair of red scissors and a pair of black gloves were found at the scene and seized by the police.

13.Investigation and analysis of the CCTV footages revealed the identity of the defendant.  He was then arrested on 25 July 2018.  Under caution, in video recorded interviews, the defendant admitted the four offences.

Background and mitigation

14.The defendant is aged 27.  He has 17 previous convictions for burglary and one for attempted burglary.  The antecedent statement of the defendant also reveals that the defendant was last discharged from prison on 28 April 2018, which was less than a month before the first of the series of offences he pleaded guilty to was committed on 18 May 2018.

15.Mr Sherry has submitted a written statement in mitigation for the defendant and helpfully drawn my attention to several sentencing cases. 

16.The defendant’s background is unremarkable. 

17.Counsel submits that the offences were not skilfully planned and did not involve the use of heavy instruments.  The defendant was acting alone and the total loss was not huge.  It is submitted that the offences were all opportunistic crimes and that the defendant was not a professional burglar. 

18.Mr Sherry emphasises that the defendant fully co-operated with the police, admitting all the offences, which saved the police a lot of time.  Hence, despite the previous record of the defendant, any increase from the usual starting point of 2½ years should be modest.

The court’s consideration

19.The usual starting point for a single burglary of non-domestic premises committed by a first offender of full age, where there are no aggravating or mitigating factors, is 2½ years’ imprisonment.  When a defendant is properly regarded as a persistent offender, the starting point should be increased.

20.The defendant no doubt has an appalling criminal record.  Not only that he has altogether 18 offences in relation to burglary, he began to commit a series of burglary offences in less than a month after he was discharged from prison.  He is a persistent offender.

21.While I can accept that the offences might not be sophisticated and well organised, they were not committed in an opportunistic manner, as submitted by Mr Sherry.

22.In the interests of the public and to deter the defendant from committing similar offences in the future, I would enhance the usual starting point by 6 months. 

23.The starting point for each of the four charges would be therefore 3 years’ imprisonment.

24.While the defendant co-operated with the police and confessed the offences during police investigation, I do not think the defendant should be offered a further discount on top of the one-third for his plea of guilty, in all the circumstances of this case. 

25.The defendant is therefore sentenced to 2 years’ imprisonment for each of the four offences.

26.The last issue is the totality principle.  I have taken into account that the offences were committed in different places and on separate dates within a month.  The total loss for the four offences was only about $50,000.  However, some of the premises were damaged. 

27.In my judgment, the proper starting point for the total sentences should be 5½ years and the total sentence after one-third discount would be 44 months’ imprisonment.

28.I therefore order that 10 months of the sentence in Charges 2 and 3 are to run consecutively to the sentence in Charge 1.  The rest of the sentences are to run concurrently.

29.The sentence in Charge 4 is also to run wholly concurrently with Charges 1, 2 and 3.

30.The total term of imprisonment is therefore 44 months.