HKSAR v. Dao Van Tung

DCCC 716/2020

[2021] HKDC 315

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 716 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a single charge of Attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210.

2.The particulars of offence aver that the defendant on 4 May 2020 in Hong Kong, attempted to enter as trespasser a building known as Nos 123-123A Cheung Sha Wan Road, Sham Shui Po, Kowloon, with intent to steal therein. 

3.According to the summary of facts which was agreed by the defendant, at the material time the defendant attempted to enter the Building ie 123 Cheung Sha Wan Road, Sham Shui Po, Kowloon (hereinafter called “the Building”) as a trespasser with intent to steal therein.

4.The gist of the case is that Yeung Pui Lan (hereinafter called “PW1”) lived with her family at Tong 5/F of the Building (hereinafter called “Tong 5/F”), and Cheung Hong Chau (hereinafter called “PW2”) lived with his wife at Tong 3/F of the Building (hereinafter called “Tong 3/F”).

5.On 5 May 2020 at around 1645 hours, while PW1 was reading in the sitting room, PW1 heard some noise in the reading room.  She then went to check out the noise and found that the sliding window in the reading room was now opened much wider (about 4-5cm), which she remembered she had just left a small gap (0.5cm) for ventilation.

6.At the same time, PW1 saw a silhouette of a man moving outside the frosted glass window and the window gap kept getting wider and wider.

7.She then immediately closed the window, shouted at the man and asked what he was doing here.  A man’s voice then replied he was there to pick up his clothes.

8.Feeling worried, PW1 went to the living room trying to check him out through the non-frosted window as the windows were facing the same direction in both rooms.

9.Without the vision blocking frosted glass, she saw a half-naked non-Chinese male, with dark pant and tattoos on his left arm (hereinafter called “Man A”).  He was trying to climb down to 4/F by stepping on some supporting frames of air conditioner and water pipes.  PW1 then reported the case.

10.On 5 May 2020 at around 1650 hours, while PW2 was in the sitting room, he heard some noise outside the window.  Upon checking, he found a non-Chinese male (hereinafter called “Man B”) standing at the platform.  PW2 asked what he was doing here and he replied he was there to carry out some renovation works.

11.Man B later tried to climb down from the platform but was unsuccessful. PW2 then asked Man B to enter his flat through the window in order to avoid any accident.  Man B then entered Tong 3/F and left.

12.On the same day at around 1704 hours, PC 18037 (hereinafter called “PW3”) and party arrived the Building.  The defendant was seen acting suspiciously at the staircase, PW3 thus intercepted him for enquiry.  The defendant was later arrested for the offence of “Attempted burglary”.

13.In the identification parade, PW1 and PW2 positively identified the defendant as Man A and Man B respectively.

14.The defendant’s fingerprint was found on the window frame facing the sitting room of Tong 3/F.

15.Nos 119-121 Cheung Sha Wan Road and the Building are two adjacent buildings and they have an interconnected patio (hereinafter called “the Patio”).  The platform outside Tong 3/F was one floor above the Patio.

16.CCTV of the Building did not capture the defendant entering the Building via the main entrance.  However, CCTV in the vicinity captured the defendant climbing up to the Patio at around 1524 hours on 5 May 2020.

Criminal records and background of the defendant

17.The defendant was born in Vietnam in August 1991 and came from fishing family.  He is presently 30 years of age and a Form 8 holder.  He is single and was educated up to secondary school standard in Vietnam.  The antecedent statement states that he was educated to Form 2.

18.He has not contacted his immediate family (parents and younger brother) for several years since he came to Hong Kong in June 2016.

19.The defendant has two previous criminal convictions, namely Theft (shoplifting) case in 2016 and Possession of dangerous drugs in 2019 for which he was sentenced to three months’ imprisonment of each charge.

Mitigation

20.In mitigation, Mr Boyton emphasised the fact that the defendant had pleaded guilty to the offence at the earliest opportunity and is entitled to the full one-third discount.

21.Mr Boyton rightly pointed out that the offence for the burglary of a domestic premises has specific guidelines: R v Chan Yui Man, CACC 36/1988 (23 February 1989) which is three years.

22.He further submitted that although an attempted burglary HKSAR v Po Yan Chuen [2002] 2 HKC 172 the Court of Appeal declined to reduce the guideline starting point as the lady in the premises was ‘alarmed’ by the applicant’s activities and it was likely he would have completed the offence if he were not apprehended.

23.However, in the instant case, PW1 was ‘worried’ and it is evident from the fact that it was very unlikely that the defendant would have completed the offence as he was already making good his escape.

24.Mr Boyton therefore invited the court to consider whether a reduction in sentence for this attempt as the facts are not quite as serious as Po Yan Chuen (above).

25.Mr Boyton submitted that a significant difference was that the instant case was committed in the afternoon (shortly before 5 pm) and not in the early hours of the morning in a secluded village house in the New Territories, and that the defendant became stuck and had to be helped down.

26.Mr Boyton also submitted that this was an inchoate offence committed by the defendant alone and does not require any enhancement, and there is no evidence that the offence was committed by two or more persons, as it is clear that ‘Man A’ and ‘Man B’ seen at different times in the Summary of Facts both referred to the defendant.

Sentencing considerations

27.As rightly pointed out by Mr Boyton in mitigation, 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 see also AG v Lui Kam Chi [1993] 1 HKC 215.

28.However, Mr Boyton submitted that a lower starting point is appropriate in this case because of those reasons advanced in mitigation.

29.My view is that the defendant is charged with and convicted of an attempted burglary, it is correctly pointed out by Mr Boyton that in the case of Po Yan Chuen, the Court of Appeal approved a sentence of 3 years’ imprisonment for a case of attempted burglary involving domestic premises when the victim had been alarmed. 

30.In the present case, the fact that the defendant was unable to go further and complete the offence was simply because of PW1’s alertness and confrontation, and she must have been frightened or alarmed to a certain extent.

31.I therefore do not consider this case less serious than a complete offence.  I would therefore adopt the usual starting point of 3 years’ imprisonment for an ordinary domestic burglary.  See Lui Kam Chi and also Po Yan Chuen above.

32.Applying the case of Lui Kam Chi, I adopt a starting point of 3 years’ imprisonment.  One-third discount is given to the defendant as he indicated his guilty plea at the earliest opportunity.  The sentence is therefore reduced to 2 years’ imprisonment.

33.There being no further valid mitigating factors justifying further reduction in sentence, the defendant is sentenced to 2 years’ imprisonment.