HKSAR v. Nguyen Thi Kim Oanh and Another

DCCC 112/2019

[2020] HKDC 23

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 112 OF 2019

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Reasons for Sentence

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1.I am dealing with two defendants and a total of seven charges of burglary. The 1st defendant pleaded guilty to two of those charges and the 2nd defendant has taken responsibility and pleaded guilty to all of the seven offences. The offences are committed at a construction site in Sham Shui Po. All the burglaries were committed there in a period between 26th October and 1st November.

2.The burglaries were detected by the discovery of a hole in a fence at the construction site on 30th October 2018 and the CCTV recording of the site showed there had been seven occasions of entry into the site through that hole in the fence between 26th October and 1st November. 

3.The target of the burglary was electrical wire, which could be found there.  The first five charges, the total value was 28,500, and the last two charges, the value of the electrical wiring was 16,000. 

4.The 1st defendant and the 2nd defendant both admitted their involvement under caution.  They can be seen on the CCTV recordings. As I said, the site itself was a construction project run by a company called “Westwood”.  The target of the burglary is the electrical wires there.  As I said, it was not scrap; it had some value. 

5.The seriousness of the offence arises out of the repetitive nature of it.  The 1st defendant records selling the electric wire to a collector or recycling shops, getting sums of between 1 to 4 thousand dollars for them.

6.Insofar as the 1st and 2nd defendant acted together in the 5th and 7th charges, they shared the proceeds, I am told.

7.Turning to the defendants’ antecedents, the 1st defendant is aged 30 and was a housewife and would wish to resume her life as a housewife.  She was arrested in November for this offence and has been in custody since then.  She is married, has a son and daughter aged 9 and 5, I believe.  She has a minor criminal record involving a gambling offence and a conviction of possession of a dangerous drug, for which she was sentenced to probation.  She is in breach of that probation order.

8.As far as her background is concerned, I have obtained reports on her.  Conclusions of those reports would suggest that she still is at risk for committing offences.  She is not suitable for a probation order. Her children are well cared for at present even though she is in custody, but, of course, the courts must be anxious to restore parents to their children, especially where they are young, and enable both the parent and the child to resume family life together.  I bear that in mind when sentencing her.

9.As far as the 2nd defendant is concerned, he is now 48, educated to Secondary 1 in Vietnam.  He has a daughter, although it appears that the relationship he was in has ended at this point.  He has an extensive criminal record, a total of 23 court appearances, a number (some three of them) for burglary, the last being in 2011, when he was sentenced to what would have been 20 months’ imprisonment in a District Court case.  Defendant has a number of other offences of dishonesty and offences involving dangerous drugs.

10.The defendant’s criminality does appear to arise out of his need to provide financing for his drug addiction.  He has been treated by way of Drug Addiction Treatment Centre and is now in receipt from the courts prison sentences.  It would appear there is no realistic prospect of the courts weaning him away from his drug addiction.  It is really up to him, but while he remains addicted, he is of course at risk of committing further offences and of becoming a recidivist.

11.Turning to the guiding principles of sentencing, these are burglaries which have been committed at what would be described as a non-domestic premises.  The normal guideline starting point for a sentence for a person of clear record after pleading not guilty would be a sentence of 30 months’ imprisonment. 

12.There is some flexibility in the application of guidelines.  Particularly, sentences can be reduced, where the burglaries are opportunistic.  That is not the case here.  There was certainly planning.  And, of course, the nature of the premises must be borne in mind when determining how severe they are as burglaries.  In this case, the defendants accessed by a hole in the fence and stole electric wiring that was lying about. 

13.I consider the application of the full tariff in a situation like this may be unfair.  I would consider that the actual sentence that I would take as my starting point before any aggravating or mitigating factors would be considered would be a starting point of 24 months’ imprisonment for a burglary of this nature.

14.As far as both defendants are concerned, there is the aggravating feature that they would have committed the offences together. Given the pleas entered, that would apply to the 5th and 7th charges.

15.The other aggravating factor is, of course, the 2nd defendant’s previous convictions, which show that previous sentencing has not been effective.  That is an aggravating factor that would apply to all the charges to which he has pleaded guilty. 

16.The only existing mitigating factor for both defendants is their plea of guilty.

17.Applying those principles to the actual sentences to be imposed on the defendants in respect of each charge they have pleaded guilty, I will deal with the defendants now in respect of the charges.

18.On the 1st charge for the 2nd defendant, applying the principle I have already set out, the starting point for sentence would be 27 months’ imprisonment.  After deduction for plea of guilty, the sentence would be 18 months’ imprisonment. 

19.That same sentence is applicable to the 2nd, 3rd and 4th charges, and also the 6th charge.

20.For the 5th and 7th charge, there are two operative aggravating factors leading to a starting point of 30 months’ imprisonment.  After deduction for plea of guilty, that would lead to a sentence of 20 months’ imprisonment.

21.I have decided, given the 2nd defendant’s involvement in all these offences, the overall sentence should be one of 30 months’ imprisonment.  I would order then that the first five charges be served concurrently to each other and the 6th and 7th charges be served concurrently to each other but 12 months of those charges be served consecutively to the 1st to 5th offences, giving a total of 30 months’ imprisonment.

22.As far as the 1st defendant is concerned, the operative starting point in respect of both her charges is one of 27 months’ imprisonment.  After deduction for her plea of guilty, that leads to a sentence of 18 months’ imprisonment.  Having regard to her particular family situation and the fact she has only committed two offences in close proximity to each other, I will order that those sentences be served concurrently:  a total of 18 months’ imprisonment.

23.I consider those sentences adequately reflect the criminality of these offences and they will be the sentence I will impose.

Court adjourns - 3.17 pm

Court resumes - 3.34 pm

Defendants present. Appearances as before.

COURT: All right, two mistakes. Well, one mistake. 10 months. It’s 10 months.

MR WONG: Yes.

COURT: Not 12 months.

MS MOHAMED: Yes, 10 months, yes.

MR WONG: Yes.

COURT: Okay. As the consecutive nature of Charges 6 and 7. And the other one is there’s no -- I’m making no further order in respect of the breach of probation order.

MR WONG: Okay.

MS WONG: I’m grateful for that.

MR WONG: Thank you.

MS WONG: Yes.

COURT: Right. So, let me see. It’s expired. Right. So she is not required to make any -- to do anything with respect to the probation order now.

MS WONG: Yes, thank you.

COURT: Right. Well, thank you for staying.

MR WONG: All right, thank you.

MS WONG: Thank you.

MR WONG: Thank you.

COURT: We’ll stand down again.

Court rises - 3.34 pm

5 December 2019