HKSAR v. Cheung Yiu San and Another

DCCC 5/2020

[2020] HKDC 641

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 5 OF 2020

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Reasons for Sentence

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1.Both defendants pleaded guilty to a single charge of burglary at the earliest opportunity. Both admit entering as trespassers Flat F, 11th Floor, Wellcome Mansion, 233-239 Cheung Sha Wan Road, Sham Shui Po, Kowloon with intent to steal therein on 12 September 2019.

2.The facts are straightforward.  The premises in question were under renovation at the material time.  Even though empty whilst under renovation, the flat had an iron gate secured by a chain and lock.  On the afternoon of 11 September, the contractor left the flat after locking the wooden door and securing the lock and chain of the iron gate.  A tenant living on the 12th floor returned home at about 1.30 am but had to take the lift to the 11th floor before walking upstairs to his own premises.

3.This witness reached the 12th floor and both defendants agreed they were pretending to clean the corridor.  He was suspicious as he had not seen those men before.  He looked out of his window when he got home and saw one of the men standing in the corridor of the 11th floor, one floor below.  He then called the police.

4.Within a few minutes, the police arrived and found that the iron gate and wooden door of the burgled premises were open. There were prize marks on the wooden door and the combination lock was also open.  The police found a spanner on the ground near the door.  Both men were found inside, hiding near the kitchen.  Both were wearing masks and a pair of gloves. 

5.The 2nd defendant was holding a screwdriver. The police found another screwdriver, a crowbar and a recycling bag containing more gloves and a towel. There was nothing stolen from the flat as they were caught red-handed.  Both were arrested for burglary and cautioned.  Under caution both admitted the offence, admitting they broke in to see if there were any valuables to steal.

6.The 1st defendant is not a man with a clear record.  He has 12 previous criminal convictions with nothing similar.  His previous convictions include assault, robbery, theft and drug related offences.  He is now 34 years old, single and was unemployed at the time of his arrest.

7.The 2nd defendant also is not a man with a clear record.  He has 37 previous convictions from 23 court appearances.  His previous convictions include theft, drug related offences, driving offences and various burglary convictions.  He is now 45 years old, single and was unemployed at the time of his arrest.

Mitigation

8.I thank defence counsel for their written submissions in mitigation.  I have been told that the 1st defendant lives with his mother and younger brother but was unable to find much work prior to the offence.  He was under immense financial pressure to provide for his family. It has been emphasised that he has no similar criminal convictions for burglary.

9.I have been told that both defendants say they were visiting a friend who lived on the 12th floor and noticed that the material premises were under renovation when they got out of the lift.  They found the crowbar, screwdriver and gloves outside the locked door.  Both rely on an element of opportunity in committing this offence.

10.The 2nd defendant lives with a partner and does have an 11-year-old son from his first marriage.  He is mainly under the care of the 2nd defendant’s mother.  He has tried to turn over a new leaf whilst serving various terms of imprisonment.  He has completed a course in construction work whilst in prison but found it hard to find any work in 2019 before this offence.  I have seen a relevant certificate and work card.

11.The usual starting point for a burglary of a domestic premise is 3 years’ imprisonment if there are no aggravating or mitigating factors.  These premises were not occupied at the time but under renovation.  They were not vacant premises, empty of all private possessions and ready for demolition for example.  Premises under renovation often do have items of value to steal and sell such as tools.

12.I have been urged to consider a lesser starting point, a 2-year or less starting point and have been referred to various authorities that have taken a lower starting point where the premises are unoccupied at the time.

13.I have taken into account the fact that neither men live in this building.  Neither men told the police that they were visiting a friend on the 12th floor at the time of their arrest.  Neither men told the police that the gloves, crowbar and screwdrivers were found outside of the locked gate and that they took the opportunity to use these items to break open the lock and enter.  Neither elected to give evidence to support this mitigation that they were visiting a friend and the burglary was entirely opportunistic.

14.I am sure there was an element of opportunity in their hoping that there were valuable items inside those empty premises.  I do not however believe that they did not go equipped to find out.  There was an actually act of breaking in through an iron gate and then a wooden door.

15.I will take a starting point of 2 years and 6 months for this burglary of domestic premises which were, I accept, unoccupied and under renovation.  I may have given more of a discount from the normal starting point if the premises were empty in a derelict and vacant building which was to be demolished or redeveloped.  However, that is not the case here and premises under renovation can mean valuable tools may be found inside.

16.I find both men equally culpable and despite their poor criminal records do not find on this occasion that their recidivism will attract an enhancement to their sentences.

17.Both are entitled to a discount of one-third for their early plea.  Accordingly, I reduce the starting point of 2 years and 6 months by 10 months and sentence them both, D1 and D2, to 1 year and 8 months’ imprisonment.