HKSAR v. Leung Wai Ming

DCCC 1029/2020

[2021] HKDC 1012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1029 OF 2020

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Reasons for Sentence

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1.The defendant has pleaded guilty to a single charge of burglary. The particulars of offence established on 26 June last year, 2020, the defendant, having entered as a trespasser a building known as Cheong Tai Building at No. 36 Tai Ho Road, Tsuen Wan, stole therein one staff uniform.

2.The facts that I have been presented with establish that the building itself, Cheong Tai Building, is a 20-storey residential building at 97-101 Hoi Pa Street in Tsuen Wan.  An outer wall renovation work had been conducted by a company since February 2020 where scaffoldings were erected outside the building. 

3.The defendant was found by the site supervisor when he was conducting a supervisory patrol at what is described as the back staircase on the 20th floor at the offence location.  He saw the defendant walking on a scaffold heading towards him and intending to climb down the scaffold.  The defendant was not recognised by the site supervisor as a worker although he was dressed in construction clothing.  The defendant told the supervisor he was there to dismantle the scaffold, but it was confirmed there were no scaffolding dismantling works scheduled. 

4.The defendant was searched.  He was found to have a staff uniform inside a black eco bag that he was carrying.  Defendant also had some tools, including a screwdriver, a plier and a hook bill vinyl knife. 

5.It was confirmed that the shirt was originally placed in the corridor near the door of the offence location rooftop level.  So the defendant must have entered into the corridor at the rooftop level in order to steal the shirt that he has admitted stealing in the burglary charge. 

6.I have seen photographs of the premises.  The location of the theft occurs in a corridor on the rooftop.  It is an enclosed area so the defendant must have entered the building in order to access the corridor.  However, although the building is a residential premises, the location of the offence, which is simply a room covered in the rooftop, could not be described as a domestic premises.  It is a non-domestic part of what would otherwise be domestic premises.  The defendant has entered that part of the building, which seems to be an area where some tools and other items are stored by workers.  But the facts do show it should be treated as a non-domestic area within that building. 

7.The defendant himself is now aged 47.  According to his antecedents, he has a number of previous convictions between 1992 and 2019: one previous conviction for burglary in 1993 in which he was sentenced to 9 months’ imprisonment under what must have then been the tariff at that time; other offences involving dishonesty in the year 2000, theft of a vehicle, taking conveyance in 2003, using a false instrument in 2008; otherwise, convictions for offences such as possession of dangerous drugs and criminal damage. 

8.In mitigation, I am told in fact the defendant is 48 years old, educated to Form 3 level in Hong Kong, separated with his wife but still provides for a six-year-old son.  The defendant was working as a casual construction worker at the time of his arrest, earning about $10,000 a month, living in a public housing unit in Tuen Mun. 

9.The point is, of course, the defendant will find it easy to find a job in construction work on his release.  The  defendant made no attempt to leave and was arrested by the police. 

10.I note in the submission put forward a number of cases are referred to in which the defence ask the court to deal with this defendant as an opportunistic burglar.  I will deal with those when I deal with the correct starting point for this offence. 

11.The sentencing approach is as follows.  The sentencing guidelines for burglaries have been laid down in appellate cases.  A distinction is drawn between a domestic and a non-domestic premises.  I have indicated already that I would approach this particular location on the rooftop of the building as a non-domestic premises.  Where non-domestic premises are involved, the usual starting point for sentence will be one of 30 months’ imprisonment for a person of clear record who pleads not guilty.  That starting point for sentence can, of course, be enhanced for various aggravating factors and also reduced for other mitigating factors. 

12.Dealing with this case, the only obvious aggravating factor is the fact that the defendant has a previous conviction for burglary and also some convictions for dishonesty.  However, the conviction for burglary in this defendant’s case was in 1993 which is now a long time ago and the other convictions for dishonesty are not relevant to this particular offence.  So I will not enhance the sentence with regard to the fact the defendant has a previous conviction for burglary. 

13.The starting point for sentence can of course be reduced for various reasons.  I have been referred to the case of Cheung To Ming [2006] 2 HKLRD 259 where it is said that a lower starting point can be involved for this offence, particularly in the case where the defendant is a sneak thief or a walk-in or opportunistic burglar, a person looking to steal whatever he can find. 

14.Whether a person should be regarded as a sneak thief or opportunistic burglar is of course different in each case and the facts will determine what is appropriate for discount in each case.  What I do note in this case is that the defendant must have made considerable effort to get to this location, it is the 20th floor, and the inference is that the defendant must have climbed up the scaffolding in order to get there.  The defendant also was masquerading as a member of the staff of the construction or the renovation company.  So there had been a degree of planning in respect of this offence. 

15.Against that can be set the fact that the defendant only entered the rooftop and was discovered leaving the building. Secondly, he only took a shirt, which is a very low-value item, and the defendant only entered the rooftop area, the enclosed rooftop area of the building. 

16.Taking into account all those factors, I do consider a small deduction from the normal starting point should be entertained in this case.  I will take a starting point of 27 months’ imprisonment for the defendant in this case.  I reduce that to 18 months’ imprisonment for his plea of guilty.  So his sentence will be one of 18 months’ imprisonment.