HKSAR v. Wong Muk Yim

DCCC 370/2020

[2021] HKDC 219

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 370 OF 2020

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Reasons for Sentence

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1.The defendant has pleaded guilty to an attempt to burgle a premises, Wing Lee Motor Company, which is situated in Sai Wan Ho.

2.The facts show that on 29 February 2020, the shop’s proprietor securely locked the premises by way of the front and back doors. 

3.The defendant was intercepted by police on 2 March 2020 in the early hours of the morning, 3.40 am.  When he was intercepted, he was found to be in possession of gloves, 3 screwdrivers, a spanner and pliers. 

4.When police conducted a sweeping operation in the vicinity, they found some evidence of an attempt to burgle the premises.  Some broken pieces of the back door metal lock were found.  Some pull-up banners were found by the back door of the shop.  The defendant was questioned and he said that he prised the door, intending to go inside to check if anything could be stolen. 

5.Examination of the CCTV footage showed that the attempt to burgle was in fact committed by the defendant along with two other men and they appeared to assist the defendant by placing pull-up banners outside the doors, then acting as lookouts.  This, of course, was an attempt to burgle.  Nothing -- entry was never gained to the premises.  No items were taken. 

6.The defendant is 39 years old.  He had been working as a part‑time decoration worker, educated to Form 3.  Defendant has been in prison on a number of occasions.  He was last discharged from prison on 28 November 2019.  He is a consumer of methamphetamine. 

7.Defendant has numerous convictions, particularly for possession of dangerous drugs.  He has been sentenced to drug addiction treatment centre and appears to show evidence of being a drug dependant.  Thes relevance to sentence today is the fact the defendant has had two previous convictions for burglary in 2016 and 2019.  On both occasions, he was sentenced to 26 months’ imprisonment. 

8.The defendant’s mitigation shows that he is 39 years old, born in the mainland.  He was living with his mother and father.  He was a casual decoration worker before his arrest. 

9.In respect of sentencing, the premises are undoubtedly a non-domestic premises.  The normal starting point for the burglary of a non-domestic premises would be a sentence of 30 months’ imprisonment.  That can be subject to aggravating factors and mitigating factors.  The usual range of aggravating factors is found in HKSAR v Cheng Wai Kai, CACC 338/2007. 

10.Insofar as aggravating factors exist in this case, I am prepared to identify two, that is, the offence is committed by two or more people and the defendant has previous convictions, particularly previous convictions of a similar nature.  The defence does not appear to show any evidence of careful planning or skilful execution.  The equipment possessed is simply that for prising doors which has been clearly taken account of in the original 30 months’ starting point. 

11.Having identified the two aggravating factors, this means that the actual starting point for sentence is one of 36 months’ imprisonment.  The mitigating factor is the defendant’s plea of guilty - he is entitled to a one-third deduction from that starting point - will lead to a sentence of 24 months’ imprisonment.