HKSAR v. Ye Wenfei

DCCC 1082/2020

[2021] HKDC 898

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1082 OF 2020

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REASONS FOR SENTENCE

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1.Mr Ye pleaded guilty before me to two charges of Burglary, both contrary to section 11(1)(a)  and (4)  of the Theft Ordinance, Cap 210. The particulars of both charges are that he, on 3 August 2020, in Hong Kong, entered as a trespasser part of a building known as Mezzanine Floor (Charge 1)  and Ground Floor (Charge 2), No 88 San Hong Street, Sheung Shui, New Territories, with intent to steal therein.

Summary of the facts admitted by Mr Ye

2.The subject dispensary shop occupied the Ground Floor and Mezzanine Floor of a building located in No 88 of San Hong Street.  The Ground Floor served as the shop front while the Mezzanine Floor served as a Warehouse. There was also a small warehouse at the rear of the shop on the Ground Floor.

3.On 3 August 2020, about 3:30 am, Mr Ye was captured by CCTV to be wandering and looking around in the Warehouse.  About 2 hours later, Mr Ye was seen in the vicinity by a policeman to be illuminating the shops with his mobile phone’s lighting device and at the same time he was looking around. Being suspicious of what Mr Ye was doing, the policeman stopped him and found from the mobile phone photos of entrances, shop shelves, shop CCTV, door locks etc taken between 1:24 am and 4:25 am the same day.

4.Mr Ye was arrested and cautioned.  Upon search, 3 keys were found in the left pocket of Mr Ye’s pants.  The keys were capable of opening three locks of the shop.

5.During cautioned VRIs, Mr Ye stated, inter alia:-

(a)  He went to the Warehouse at around 3:30 am on 3 August by using one of the keys to see if there was anything to steal;

(b)  He then entered the small warehouse by using another one of the keys to see if there was anything to steal;

(c)  He had worked in the shop before; and

(d)  The three keys were skeleton keys.

Criminal record

6.Mr Ye has 6 previous convictions 4 of which (in 2015 and 2018)  were related to Theft Ordinance offences.

Antecedents

7.Mr Ye is aged 25 (24 at the time of the offences), born and grew up in the Mainland, educated to secondary school level, had worked in a grocery store between April 2019 and January 2020.  Mr Ye is single and at one time lived in public housing in Kwai Chung.

Mitigation

8.Mr Victor Lee of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Ye.

9.The following is a summary of the mitigation submissions.

10.Mr Ye came to Hong Kong in 2014 and was living with his parents and younger brother.  At the time of arrest, he was unemployed.  He previously worked as a warehouse worker earning about $14,000 a month.  He entered the shop to see if there was anything to steal and left without stealing anything. No damage was suffered by the shop.  He admitted the offences upon arrest and was cooperative.  He pleaded guilty at the earliest opportunity.  Mr Ye was not an employee of the shop at the time of the offences.

11.Upon enquiry by the court, Mr Lee said that Mr Ye was last discharged from prison in October 2018.

12.Mr Lee submitted that the normal sentence for non-domestic burglary is 30 months after trial.  It was submitted that the two charges concern the same premises namely, the shop and its warehouse upstairs; that the date of offence, location and the victim are the same.  Concurrent sentences are therefore asked for.

13.Mr Lee submitted a mitigation letter (with English translation)  written by Mr Ye himself.  The contents are generally that Mr Ye committed the offences out of momentary greed and decided not to steal anything at the last moment; that he asked for leniency and a last chance to reform himself.

Sentence

14.I have considered the mitigation submissions.

15.I am satisfied that this case does not qualify as a breach of trust case despite the fact that Mr Ye had previously worked at the subject shop.

16.I shall adopt as the basic starting point 2½ years’ imprisonment.  Mr Ye is a repeated offender who was last sentenced in February 2018 to 25 months’ imprisonment for two counts of (attempted)  burglary.  It wasn’t long after his last discharge that he resorted to committing burglary again.  For this reason, I shall enhance his starting point by 3 months for each of the charges.

17.The two offences were committed as one incident.  I will impose concurrent sentences.

18.Mr Ye pleaded guilty in time and is entitled to the full 1/3 discount. There are no other effective mitigating factors.

(Mr Ye, please stand)

19.For Charge 1, he shall go to prison for 22 months.

20.For Charge 2, he shall go to prison for 22 months.

21.The sentences will be served concurrently.