HKSAR v. Tran Van Cuong

DCCC 703/2020

[2021] HKDC 136

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 703 OF 2020

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REASONS FOR SENTENCE

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1.The defendant, a Form 8 recognizance holder, pleads guilty to one charge of attempted burglary[1], contrary to section 11 of the Theft Ordinance[2] and section 159G of the Crimes Ordinance[3].

2.Full particulars of the offence are set out in the summary of facts admitted by the defendant today[4].

3.In summary in June 2020 scaffolding was erected on the outside of the building at Nos. 179-181 Cheung Sha Wan Road.  Photographs of the building have been submitted to court.

4.At about 10:50 p.m. on 8 June 2020 Ms Chau, who lives in Room B on the 10/F, saw the defendant on the scaffolding outside her flat.  Ms Chau immediately closed the window and called the police.

5.At about 11:14 p.m. Ms Li, who lives in Room A on the 7/F, heard some noise and saw the defendant climbing up the scaffolding around the 8/F and 9/F. 

6.At about 11:17 p.m. the police arrived.  PC 20843 shone his torch and saw the defendant touching a window on the 9/F.  The police shouted to the defendant to stop moving but the defendant attempted to flee by climbing up the scaffolding to the rooftop.  PC 20843 ran up to the top of the building while PC 19790 observed the defendant climbing up the scaffolding. 

7.At 11:19 p.m. PC 20843 arrested the defendant at the rooftop of the building. 

Mitigation

8.In passing sentence, I have carefully considered the oral and written submissions of Mr Woon, including that the defendant who is from Vietnam, is 35, single and sneaked into Hong Kong in 2016. 

9.I take into account the defendant has no previous convictions for burglary. 

10.The defendant was convicted of working illegally and was sentenced to 12 months and 21 days’ imprisonment in July 2019.  I have read the defendant’s mitigation letter in which he explains that after he was released from prison on 3 June 2020 he had no money and climbed up the building to look for open windows to steal money to pay for dinner[5].  The defendant also expresses his remorse and asks the court to reduce his sentence so he can return to Vietnam to look after his mother. 

Starting point

11.The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment. 

12.I am satisfied the starting point is not to be reduced by reason of the fact that the defendant was arrested before succeeding in breaking into any flat in the building and was therefore unable to steal anything.  

Commission of offences by refugees or torture claimants

13.The defendant is a Form 8 recognizance holder who has applied for judicial review of the decision to reject his refugee claim[6].

14.The commission of offences by refugees or torture claimants is capable of aggravating sentence where the offence affects the community at large and has a significant impact on Hong Kong’s reputation for order and security.  I am satisfied offences of burglary affects the community at large and has a significant impact on Hong Kong’s reputation for order and security. 

15.By reason of the defendant’s Form 8 status I enhance the starting point by 3 months to 3 years and 3 months’ imprisonment[7].    

16.Giving the defendant full credit for his plea of guilty reduces the sentence to 2 years and 2 months’ imprisonment.  The defendant is convicted and sentenced to 2 years and 2 months’ imprisonment.