HKSAR v. Chau Fei Fu and Another

DCCC 633/2021

[2022] HKDC 395

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 633 OF 2021

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REASONS FOR SENTENCE

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1.D1 and D2 pleaded guilty to a charge of burglary.

Summary of facts

2.In respond to a report of dismantling sound, the police arrived at a school building at about 4pm on 19 March, 2021.

3.D2 was found at the ground floor corridor handled some aluminum frames.  Next to D2 there were 6 pieces tied by 2 metal wires and 2 loose aluminum frames, one bag containing a pair of gloves, four clamps and a screwdriver.

4.D2 attempted to leave, but was handcuffed and arrested for an offence of burglary.

5.Under caution, he said that he was there to take a rest.

6.The police also saw D1 came out from a class room.  He ran away, but was subdued at a nearby carpark.

7.D1 was arrested for burglary and said under caution that he slept inside the classroom.  Police found 3 clamps, a screwdriver, 2 handsaws, I drill bits, one upper garment and some wires wrapped in a piece of cloth.

8.In a video recorded interview, D1 said that he was unemployed, he saw the metal fence had been cut open.  He saw a person walked in, he did the same and slept in one of the classrooms.  He heard someone was being arrested, he was frightened so he ran away from the scene.

9.D2 said that he also saw the metal fence was cut open, he walked in and rested on some metal frames as he was tired.

10.According to the government record, the above school location had been returned to the government and was managed by the government logistic department.  The department had never authorized any person to dismantle or remove anything from the school.

Criminal records

11.D1 has 4 previous criminal records.

(a)  2004 – gambling in a gambling establishment;

(b)  2017- attempt theft;

(c)  2018 and 2019 – burglary.

He was sentenced to 22 months’ imprisonment for the 2019 burglary and was discharged from Hei Ling Chau Correctional Institution in August, 2020. That means he committed the present offence 7 months after he was released from prison.

12.D2 has 16 criminal convictions from 1982 onwards until 2021.  His last 2 conviction records were in April, 2021 for gambling in the gambling establishment.  He committed those gambling offences after he was arrested for the present case.

13.D2’s only conviction related to dishonesty was in 1982, theft from vehicle. The rest are fighting in public place, resisting arrest, drug offences, attempt to escape from legal custody, using forged ID card and possession of prohibited weapons.

Mitigation

14.D1 is now 49 years old and married with 2 children.

15.After his discharge from prison in August, 2020, he worked as a construction site worker with a monthly wage of about $18,000.  He contributed $9,000 to the upbringing of his children as they are living with his ex-wife and his current wife.

16.However, due to the onset of the pandemic, his income had been drastically reduced and he lived from hand to mouth.

17.As to D2, he is 52 years old and remains single.  His parents have passed away leaving him a younger sister who is very close to him.  He is particularly worried about her health as she is a cancer patient.

18.Since the middle of 2019, D2 had remained unemployed and relied on the monthly subsidy of $4,900 from the government.

19.D2 also suffered from waist injury previously and now is in pain.

20.On the day in question, D2 went into the abandoned school alone.  He saw some scrap metals on the floor, he tied them up and hoped to sell them for a small sum.

21.It is neither planned nor skillfully executed as there was no use of heavy instrument or equipment.

22.D2 committed the present offence due to momentary greed and he was an opportunistic burglar only.

23.Both D1 and D2 said that they did not know each other.  Therefore, there is no aggravating factor as suggested in HKSAR v Cheng Wai Kai CACC 338/2007.

Sentence

24.It is well settled that for an offence of burglary of a non-domestic premises, the starting point is 2 years 6 months.

25.As stated in the case of HKSAR v Cheung Wai Kai CACC 338/2007 that when 2 persons committed the same offence, it is an aggravating factor.

26.However, both defendants claimed that they did not know each other and they entered the school just to rest or to sleep.  On this point, one would ask, why D2 would attempt to flee from the scene and D1 simply ran away from the school.

27.I consider that it was too much of a co-incident as 19 March 2021 was a Friday.  Both defendants were unemployed at the material time and were suffered from financial hardship.

28.There were 2 defendants being found in the school and the police arrived at the scene to investigate a report of dismantling sound coming from the school.  That means dismantling sound has gone on for a while.

29.Under caution, D1 said that he saw a person walked into the school and he followed suit.  From this, I can infer D2 walked in first.  Who would follow another person into a school when D1 had no business in the school.  In fact, they both had no business to be there.

30.The police found gloves, clamps and screwdriver next to D2.  While in the classroom where D1 came out from, the police found 3 clamps, one screw driver, 2 handsaws, one drill bit.

31.Both defendants denied that these are tools belonged to them.

32.This burglary case is not just a simple walked in incident, the defendants planned to burgle into the schools and they equipped themselves with tools.

33.I rejected both defendants’ assertions that they did not know each other.  In fact, it was premediated and planned.  I considered that this is an aggravating factor.

34.D1 committed the present offence when he was just discharged from the prison 7 months ago.  His last 2 convictions were also burglary.  The defence accepted that this is an aggravating factor.

35.Against this background, I consider that the sentence should further be adjusted upward for another 3 months.

36.As to the status of the school, the Prosecution accepted that it was an abandoned property.  There is no plan that the school will be reused again in the near future.

37.However, from the photos of the school, one can tell that it was a big premises and there were still a lot of items have reusable and resalable value such as the window frames and electric wires.  The school itself is not in a derelict state.

38.To this end, I adopt a starting point of 2 years 3 months, adjust upward to 2 years 9 months for D1 and reduce by 1/3 discount because of his guilty plea, it comes down to 22 months.

39.As to D2, I adopt a starting point of 2 years 3 months, adjusted upward to 2 years 6 months and reduce to 20 months after 1/3 discount.

40.Order -   D1 is sentenced to 1 year 10 months.

D2 is sentenced to 1 year 8 months.