HKSAR v. Nguyen Minh Dung

DCCC 66/2022

[2022] HKDC 757

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 66 OF 2022

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of burglary. The particulars of the charge are that the defendant, on 22 August 2021, having entered as a trespasser, part of a building known as the 10^th floor, Tung Ming Mansion, No 380 Lai Chi Kok Road, Sham Shui Po, Kowloon, stole therein one handbag, one wallet, one Hong Kong ID card, cash of HK$1,200, one cash coupon, five credit cards, one ATM card and two Octopus cards. This was a burglary of a domestic premises.

2.The facts admitted by the defendant can be summarised as follows.  The premises in question was a unit located on the 10^th floor of a residential building at Sham Shui Po.  It was an 11-storey residential building.  At the material time, a bamboo scaffolding was erected on the external wall of the building.

3.On 22 August 2021, at around 1:20 pm, Ms Chan visited her father who resided at the said unit.  She left her handbag unattended on the sofa in the living room next to a window which was opened.

4.At around 2:33 pm, the defendant standing on the bamboo scaffolding, inserted a long pole (fitted with a hook)  about eight foot long through the gap of the open window and used the hook to pick up Ms Chan’s handbag from the sofa, during which his right arm also inserted into the flat through the window.  The defendant then retrieved the pole together with the handbag.  Upon hearing some noises, Ms Chan went outside to the living room and found out the defendant stealing her handbag.  She shouted at the defendant, who fled with the handbag.

5.CCTV installed inside the living room of the flat captured the course of the incident.  Ms Chan’s stolen handbag contained properties particularised in the charge.  She suffered a total loss of about HK$5,900. 

6.On 27 August 2021, the defendant was arrested at Sham Shui Po.  Under caution, he admitted that he had stolen the handbag.  The defendant further admitted in a video-recorded interview, inter alia, the following: he climbed on the scaffolding of the building and found a bamboo and a hanger abandoned on the scaffold, which he refitted to a long pole with a hook.  Upon seeing the open window, he inserted the pole inside the flat to steal the handbag.  He only took the cash of $1,200 from the handbag and disposed of everything else.

7.It is admitted that the defendant was a Form 8 recognizance holder.  The defendant has three previous convictions, not similar to the present offence.  The prosecution invites the court to enhance the sentence as the defendant is a Form 8 holder.

8.In his written and oral submissions in mitigation for the defendant, Mr McGuinniety, counsel for the defendant, tells the court that the defendant is a 32-year-old man from Vietnam with a very limited educational background.  He was unemployed prior to his arrest.  He has no immediate family in Hong Kong and his wife, son and elderly parents are all living in Vietnam.

9.It is submitted that the offence committed by the defendant was a tricky and unsophisticated act of offending which was brazenly carried out in the middle of the day.  The offence was of a very amateurish nature.  It was uncomplicated and opportunistic with little degree of forward planning.

10.Counsel acknowledged that the main mitigation available to the defendant is his plea of guilty which is an indication of his remorse.  Moreover, the defendant also made prompt and frank admissions to the police on his arrest.  He showed a realistic attitude on arrest. 

11.Mr McGuinniety has said that the defendant being a Form 8 holder is an aggravating feature in the case.  He suggests that the usual enhancement is one of 3 months.  Counsel provided a sentencing case of the District Court, DCCC 1025/2018, for reference purpose.  A letter written by the defendant indicating his remorse was also handed up to the court.

12.In passing sentence, I have carefully considered all the oral and written submissions of counsel for the defendant.  Burglary is a serious offence.  The usual 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. 

13.Defence counsel submits that the burglary in the present case was uncomplicated, opportunistic with little degree of planning. I do not think that this was an opportunistic burglary or a kind of sneak thief because the burgled premises was on the 10^th floor of the building and the defendant had to climb on the scaffold outside the external wall.  However, I accept that it was an uncomplicated crime and rather amateurish.

14.I also note that the defendant fully cooperated with the police, which indicates his remorse.  Using a pole to hook properties out of the unit through the window is sufficient entry for the offence of burglary.  However, the special facts of the present case do not form the usual scenario in a domestic burglary case where usually a starting point of 3 years will be taken.  A lower starting point, in my view, may be taken.  Having considered all the circumstances of this case, I am satisfied that a starting point of 30 months’ imprisonment is appropriate. 

15.On the other hand, the defendant is a Form 8 holder at the time he committed the offence and this is undisputedly an aggravating factor for which I enhance the sentence by 3 months to 33 months’ imprisonment.  I will not consider the previous convictions, which includes a dishonest offence of the defendant, an aggravating factor. 

16.As a mitigating factor, I will give the defendant one-third discount for his plea of guilty.  Apart from his guilty plea, I do not see any other valid mitigating factors.  For the reasons given, the defendant is sentenced to 22 months’ imprisonment.