HKSAR v. Vu Van-thang

DCCC 480/2021

[2021] HKDC 1004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 480 OF 2021

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Reasons for Sentence

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1.The defendant pleaded to one count of burglary. He admitted entering a building as a trespasser at 246 Hai Tan Street, Sham Shui Po, Kowloon on 16 March 2021 with intent to steal therein. He admitted the Summary of Facts.

2.The material building is a vacant six-storey residential building awaiting redevelopment.  There are no longer any tenants or occupiers but the building is locked up and guarded by security guards.  An acquisition notice can be seen on the ground floor of the building. 

3.At about lunchtime on 16 March 2021, the defendant was seen by a security guard on a balcony on the 5^th floor cutting wires and pipes off the wall using a pair of pliers.  The other two security guards were immediately informed of the defendant and his actions.  A police report was made.

4.When the police arrived at the rear lane behind the building, the defendant was spotted climbing up a sewage pipe to the rooftop.  He had a black shoulder bag.  He was subsequently arrested inside the building in the stairwell between the 4^th and 5^th floor. 

5.The police later searched this black shoulder bag and found items such as screwdrivers, paper cutters, a pair of scissors, a metal hook and a wrench.  They also found another brown paper bag containing three bundles of wires, a Nokia mobile and a copper pipe.  In a red bag, they found six copper pipes and two bundles of wires.  They also found on the balcony of the 5^th floor an adjustable spanner and a cable cutter. 

6.Under caution and during a video-recorded interview, the defendant admitted entering an adjacent building and going to the rooftop.  From that rooftop, he gained entry to the rooftop of the material building.  He wanted to collect items of rubbish and knew that the building was empty, vacant but locked up.  He admitted entering as a trespasser with intent to steal from within. 

Mitigation

7.The defendant’s best mitigation is his plea of guilty.  He is a 32-year-old man from Vietnam who entered Hong Kong illegally and applied for asylum.  He was allowed to remain at liberty in Hong Kong whilst his asylum application was being processed.  He has no previous convictions in Hong Kong. 

8.I have considered the contents of his mitigation letter.  Miss Cheung has said all she can say on his behalf in mitigation.  He only received primary school education.  He is married with two children but his wife, sadly, died in a car accident three months after his arrest for this offence.  His children are in the care of his parents-in-law in Vietnam.  He was a carpenter in Vietnam before he came to Hong Kong to flee from creditors and a large debt he was unable to repay.  He left fearing for his life. 

Reasons for Sentence

9.Normally, a 3-year term of imprisonment would be the starting point for a burglary of domestic premises where there is no aggravating or mitigating factor.

10.However, I find I can distinguish this case by its facts and depart from that norm.  I referred myself to HKSAR v Chau Man Ying, CACC 439/2011.  The date of that decision was 15 May 2012.  This was an appeal over sentence imposed by me after trial for a single count of burglary of an empty flat in a building in Sham Shui Po.  Similarly, that building was entirely vacant awaiting demolition and redevelopment.  The appellant in that case was an opportunistic burglar.  In that case, I took a 2-year starting point instead of a 3-year starting point to reflect those facts. 

11.The Court of Appeal made the following observations.  The domestic premises was obviously uninhabited, the place obviously had very little items of value to steal, and I quote the Court of Appeal: 

“We think, with respect, that a sensible exercise of discretion on the facts of this particular case would have resulted in a prosecution in the magistrate’s court; and we are satisfied that a materially lower sentence was warranted.”

12.The Court of Appeal set aside that 2-year sentence and as the defendant had been in custody for a year, he was released immediately.  This would indicate they were of the opinion that a 2-year term after trial on those facts was excessive.  I bear in mind this sensible approach taken by the Court of Appeal.  The defendant here was well aware the building was empty and was only hoping to find items with some resale value. Wires and pipes have some such value. 

13.Cutting those wires and removing those pipes did not inconvenience anyone as the building is earmarked for demolition.  Therefore, I distinguish this case from the normal case where a 3-year term of imprisonment would be appropriate. 

14.I take into account the facts, the mitigation and the defendant’s clear record.  On this occasion, I will not enhance the sentence because he is a Form 8 holder.  I accept the mitigation of Miss Cheung that his crime or offence does not affect any occupier, the community at large or impact Hong Kong’s reputation to any extent.  I take a starting point of 18 months’ imprisonment and reduce it by 6 months for his plea.  He indicated his plea at the earliest opportunity. 

15.Accordingly, the defendant is sentenced to 12 months’ imprisonment.