HKSAR v. Wong Chun Ming and Others

DCCC 488/2019

[2019] HKDC 1487

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 488 OF 2019

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REASONS FOR SENTENCE

1.The defendants plead guilty to one joint charge of burglary of Hsin Kuang Restaurant Hotpot in Cheung Sha Wan, contrary to section 11 of the Theft Ordinance[1].

2.Full particulars of the offence are set out in the summary of facts admitted by the defendants on 1 November 2019.

3.In summary at about 2230 hours on 26 December last year Mr Lam left the restaurant after he deposited $48,197 cash in the restaurant’s safe and secured the safe, locked the doors of the safe room and the restaurant. 

4.CCTV footage of the restaurant captured D1 and D2 inside the restaurant between 0037 and 0043 hours on 27 December when the cashier’s desk was ransacked. 

5.CCTV footage from the street captured D3 lingering about 50 meters from the restaurant at 2317 hours on 26 December.  Between 0043 and 0131 hours on 27 December PC 15217 saw D3 standing at No. 410 Cheong Wah Street which is less than 200 meters away from the restaurant and staying inside the 7-Eleven convenience store on Castle Peak Road which is less than 50 meters from the restaurant. 

Arrest

D1

6.At about 0159 hours on 27 December PC11288 intercepted and arrested D1 about 30 meters from the restaurant. 

D2

7.At about 0202 hours on 27 December PC 8027 pushed open the back door of the restaurant and saw D2 about to leave carrying a backpack.  D2 was intercepted and arrested.  The police found inside the backpack five bags of cash totalling $48,197 which had been stolen from the safe and some tools including a metal pipe, a torch and a pair of pliers.

8.At the request of the police Mr Lam returned to the restaurant and confirmed that the door locks of the safe room and the back entrance had been tampered with and that the safe was broken and the cash was missing. 

9.In a video recorded interview D2, inter alia, admitted that he used the pliers and a metal pipe to break open the back door of the restaurant and used a screwdriver, a crowbar and a saw to lever open the safe and left the tools below a refrigerator in the restaurant.

10.After the interview D2 was taken to the restaurant where he pointed out the place he had left the saw, two crowbars and two screwdrivers which tools the police had already seized during the investigation at the restaurant[2] . 

D3

11.D3 was intercepted and arrested at 0200 hours on 27 December in Cheong Wah Street. 

Investigation

12.Telephone records showed that during the burglary D1 had called D3 four times between 2328 hours on 26 December and 0156 hours on 27 December and D3 had called D1 once. 

13.Forensic examination showed paint fragments from the safe and the two crowbars were found on D1’s gloves, jacket and shoes and on D2’s backpack, cap, jacket, trousers and shoes.  Paint from the back entrance of the restaurant was also found on the pliers found in D2’s backpack.   

Mitigation

14.In passing sentence, I have carefully considered the oral and written submissions of Mr Shah, Mr McGuinniety and Mr Mitchell together with the authorities submitted by counsel[3].

Starting point

15.The correct starting point for a single burglary of commercial premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months’ imprisonment. 

Aggravating features

16.I am satisfied the following aggravating features are present. First, the commission of burglary by three burglars which involved the breaking open of a safe[4].  Second, the defendants are persistent offenders.  

17.D1 has eight previous convictions for burglary in 1990, 2005, 2006, 2009, 2011 and 2017.  D1 also has convictions for robbery in 1978 and 1983.  D1 last appeared in court in 2017 when he was sentenced to 28 months’ imprisonment for one offence of burglary of a shop which was committed together with D3 and one other (DCCC 1138/2016).  D1 was released from prison on 19 April 2018 and committed the present offence just over eight months later.

18.D2 has seven previous convictions for burglary in 2000, 2004, 2008, 2010, 2012 and 2016.  D2 also has convictions for robbery in 1979 and 1983; possession of an offensive weapon in 1983 and trafficking in dangerous drugs in 1993.  D2 last appeared in court in 2016 when he was sentenced to 28 months’ imprisonment for two offences of burglary of shops committed with one other (DCCC 454/2016).  D2 was released from prison on 5 May 2018 and committed the present offence almost seven months later.

19.D3 has nine previous convictions for burglary in 1985, 1986, 1993, 1997, 2000, 2004, 2005, 2014 and 2017.  D3 also last appeared in court in 2017 when he was sentenced to 28 months’ imprisonment for one offence of burglary committed with D1 and one other (DCCC 1138/2016).  D3 was also released from prison on 19 April 2018 and committed the present offence just over eight months later.

20.The last time the defendants appeared in court the starting points were enhanced for non-domestic burglaries by 12 months in the case of D1 and D3 (DCCC 1138/2016) and by 9 months for D2 (DCCC 454/2016).  I note neither sentence appears to have been the subject of an appeal or if there was an appeal, the appeal has been abandoned. 

21.Counsel wishing to distinguish the previous sentences and submit lower enhancements are appropriate I adjourned sentence for agreed translations to be prepared of the Reasons for Sentence in DCCC 1138/2016 and DCCC 454/2016[5]. 

22.Mr Shah submits that without undermining the seriousness of the offence the burglary which was not sophisticated is at the lower end of the scale.  Mr Shah submits an enhancement of 6 months would be appropriate.  

23.Mr McGuinniety submits that the facts of the burglary are clearly distinguishable from the burglary in DCCC 454/2016 where the money stolen was ten times more and $195,000 was not recovered.  Mr McGuinniety submits an enhancement ought not to be as high as 9 months and that an enhancement of between 3-6 months would be appropriate[6].

24.Mr Mitchell submits that although given D3’s criminal record one may be tempted to use the term “professional burglar” the facts of the case suggest anything but professionalism and when compared to the burglary in DCCC 1138/2016 was more indicative of an opportunistic act[7]. Mr Mitchell submits an enhancement of between 6-9 months would be appropriate.

25.In DCCC 1138/2016 D1 and D3 were both sentenced to 2 years and 4 months’ imprisonment having pleaded guilty to burglary of a money exchange shop, which burglary the sentencing judge described as “highly professional”.  Heavy tools such as a jack had been used to dig a hole on the wall of the storeroom adjacent to the money exchange.  Over $1 million dollars was kept in a safe.  The money was not however taken from the safe no doubt due to the fact that when one of the burglars tried to prise the anti-burglar alarm the alarm rang shortly after which the burglars were arrested. 

26.I do not agree with Mr Mitchell the burglary was opportunistic.  Whilst the burglary may not have been as “professionally” carried out as the previous burglary the defendant is clearly a professional burglar who targets premises in which there is likely to be a safe.

27.In HKSAR v Cheng Chi Shing, cited by Mr Mitchell, D3 was the appellant and was described as a professional burglar.  In that case, which also involved acting in concert with others a safe was forced open and over $400,000 stolen[8].  

28.The Reasons for Sentence in DCCC 238/2014 also show the defendant with two others burgling premises inside which was a safe and using tools including a hydraulic jack, a hydraulic cutter, a cable cutter, saws and an electric drill to make a hole on the outer wall of the office[9].

29.D1 who committed the burglary in DCCC 1138/2016 together with D3 can also be regarded as a professional burglar of premises in which there was likely to be a safe or valuable property. 

30.The Reasons for Sentence in DCCC 303/2011 also show D1 together with two others committing burglary of a doctor’s and dentist’s clinic which the sentencing judge described as showing a degree of professionalism and planning.  The premises were ransacked and valuables stolen, including cash of over HK$10,000, a camera and two laptops and tools were used to force open the clinic[10].  There was however no mention of a safe in the premises.

31.In DCCC 454/2016 D2 pleaded guilty to two burglaries committed together with one other person.  D2 was sentenced to 2 years and 2 months’ imprisonment on each charge and a total sentence of 2 years and 4 months’ imprisonment.  Although there is no mention of a safe being broken into, the total value of the goods stolen in the first burglary was nearly $500,000 and in the second burglary over $80,000.  Tools were also used to gain entry to the premises. 

32.The Reasons for Sentence in DCCC 128/2012 also show the defendant together with three others attempting to burgle the Wah Shing Gold Company using tools including a hydraulic jack, two saws and an electric drill to make two holes on the outer wall of the shop[11].

33.D2 can also be regarded as a professional burglar who targets premises where there is likely to be goods of substantial value. 

34.I have carefully considered the submissions of counsel and all the cases cited.  I accept the submission of Mr Mitchell that in considering enhancement by reason of persistent offending this includes the categorisation of the defendants as professional burglars. 

35.In HKSAR v Lui Yuen Shun leave to appeal was refused against an enhancement of 12 months where the applicant had seven previous convictions for burglary and other convictions for offences of dishonesty[12].  Whilst the facts of that case are very different Macrae JA in refusing leave said given the applicant’s continuing criminal record and his persistence in committing the same kind of burglary he could not see any appellate court disagreeing with the judge’s sentiments that previous sentences had not deterred the applicant from committing these offences and can therefore expect a further enhancement of the starting point.

36.What is clear is that previous sentences have not deterred the three defendants from continuing to commit burglary.  The three defendants continue to target premises where there is likely to be a safe or goods of substantial value.  

37.As was said by the Court of Appeal in HKSAR v Leung Chi Wai, cited by Mr Shah, the amount of enhancement will always be case-sensitive but if the enhancement is too little then it loses its deterrent effect[13].

38.Taking into account the circumstances of the burglary committed by three burglars which involved the use of tools to enter the premises and the levering open of a safe from which over $48,000 was stolen; the stolen money was recovered and that the defendants are persistent offenders who committed the burglary seven to eight months after release from prison after serving 28 months for offences of burglary, I enhance the starting point by 12 months’ imprisonment to 3 years and 6 months’ imprisonment.

39.Giving the defendants full credit for their pleas of guilty they are convicted and sentenced to 2 years and 4 months’ imprisonment.

40.Mr Mitchell asks that the sentence of D3 be further reduced by reason D3’s wife is suffering from cancer.  Whilst sympathetic to anyone with serious illness D3 should have been at home caring for his wife and not once again embarking on serious crime.  I decline to further reduce the sentence.