HKSAR v. Cheung Chiu Fai and Another

DCCC 1004/2021 & 281/2022

(Consolidated)

[2023] HKDC 225

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1004 OF 2021 & 281 OF 2022

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REASONS FOR SENTENCE

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1.Both D1 and D2 are jointly charged for all the burglary offences (Charge 1 to 4)  while the rest of the charges are against D1 only.

2.Today, D2 is absence. Warrant of arrest has been issued against D2 and I ordered that he is not back to bail on the warrant.

3.For the present proceeding, it is against D1 only.

4.D1 pleaded guilty to 3 charges of burglary, that is Charge 1, 2 and 4, he also pleaded guilty to the three driving offences: -

(a)  Charge 6: -

Driving without a licence - D1 never held a driving licence in Hong Kong.

(b)  Charge 7: -

Driving an unlicensed vehicle - the vehicle licence expired on 11 September 2019.

(c)  Charge 8: -

Driving without a third party insurance - the vehicle was not covered by third party insurance.

5.For the purpose of the present proceeding against D1, Charge 3 (burglary)  and Charge 5 (obtaining property by deception)  are now left on the court’s file. This Court order these 2 charges not to be proceeded with against D1 without the leave of the court.

6.The 3 burglary charges were all taken place in the internal compartments under the Hong Kong Zhuhai-Macao Bridge.

7.The date of offences: -

(a)  Charge 1: between 1 to 22/10/2019

(b)  Charge 2: between 2 to 14/10/2019

(c)  Charge 4: on 22/10/2019

8.All the copper strips were installed on the internal walls in the internal compartments to prevent the workers subjected to electric shock. Different sections of the compartments have locks to secure its entrance.

9.PW1 was the engineer responsible for the maintenance of the bridge. He found the locks to the entrances to several sections were either opened or dismantled in Charge 2 and 3.

10.Some copper stripes were stolen as stated in Charge 1 and 2 and they valued at $24,000 and $340,000 receptively.

11.On 22 October 2019, at about 7:30 pm, he checked Zones D8 - D19 were intact from outside, 3 hours later, he noticed a black vehicle was parked outside Siu Ho Wan Depot exit.

12.Around 11:30 pm, PW1 noticed the light of the internal compartment of Zones D15 - D18 was turned on, he suspected that there was stealing of copper stripes activities, he called the police.

13.The police arrived soon afterwards and found a large pair of pliers inside Zones D13 - D14, a total of 360m of copper stripes were also missing and it valued at $36,000. (Charge 4)

14.D1 who was wearing gloves at that time and was found hiding in the bridge pier. Inside his slang bag, 2 screwdrivers, a torch, the car key of the black vehicle and 2 mobile phones were found.

15.Under caution, D1 admitted that the copper strips were removed by Sub Jai (that was D2)  and he was acting as a look out.

16.In the record of interview, D1 said that: -

(a)  He borrowed the black vehicle from a friend about a month ago, he did not have a licence to drive.

(b)  Both D1 and D2 lived in TKO, he drove D2 to the bridge in those occasions.

17.Further than that, D1 also admitted that: -

(a)  In respect of Charge 1 and 2: -

D1 used the torch to illuminate and acted as look out while D2 used screw driver to dismantle the copper strips.

(b)  Charge 4: -

They both dismantled the copper strips, threw them down to the bushes and loaded them in his vehicle and sold them in Yau Tong. D1 received part of the proceeds.

18.Finally: -

(a)  D1 never held a driving licence. (Charge 6)

(b)  The vehicle licence was expired in September 2019. (Charge 7)

(c)  D1 was not covered by insurance to drive, he drove without third party insurance. (Charge 8)

Criminal Record

D1

19.He has 5 court appearances from 2006 to 2015 with a total of 12 conviction records ranging from indecent assault, wounding with intend, common assault (2 times in 2015), blackmail, possession of offensive weapon and claiming to be a member of triad society.

Mitigation

D1

20.He is 31 years of age, single, lived with family members prior to the present offences. He was previously a casual worker in the construction site earning about $20,000 per month. It was due to financial hardship that he committed the present offences.

21.The defence submitted that the copper strips in Charge 4 were recovered on the day of his arrest, other copper stripes in Charge 1 and 2 were also covered by insurance therefore the owner do not suffer any loss.

22.In respect of the driving offences, the defence asked for concurrent sentences as they all involved in one incident.

23.D1 is now determined to turn over a new leaf.

Sentence

24.It is well settled that for non-domestic premises burglary, the starting point is 2 1/2 years.

25.As stated in the case of HKSAR v Cheng Wai Kai CACC 338 & 339/2007 there are aggravating features in the present case to enhance the starting point.

(a)  In all three burglary charges, it involved both D1 and D2, they each had their parts to play in the commission of the present offences.

(b)  Equipment’s were used to dismantle the copper strips.

(c)  As to Charge 4 - a plier was used to open the door.

(d)  It was well planned and premeditated as D1 who did not have a driving licence went to borrow a car from his friends for the purpose of driving himself and D2 to the scene as that location was remote, there was no public transport to take them there.

(e)  The 3 charges were recurring incidents that D1 returned to the bridge to commit the present offences.

(f)  He had previous criminal records, albeit, in different nature.

26.I consider that a further 6 months in addition to the 2 1/2 years is appropriate for the 3 burglary charges.

27.The total sentence for each burglary charge is 36 months, after 1/3 discount, it comes down to 24 months.

28.As to the driving offences, the maximum sentence for:

(a)  Charge 6 and 7 are both 3 months’ imprisonment and a fine at Level 2.

(b)  While Charge 8 was 12 months’ imprisonment and a fine at Level 3, plus a disqualification order unless with special reason. The defence agreed that there was no special reason not to impose a disqualification order.

29.D1 never held a driving insurance, the licence of the vehicle was expired about 6 weeks ago prior to the present offences. He was therefore not covered by third party insurance. Clearly, if D1 met with any incident on the road during his driving, the road users would not be able to receive any compensation from him.

30.The driving of the unlicensed vehicle was to commit the burglary offences.

31.As such, I consider that a higher sentence need to be imposed to bring home a message to the defendant that he would not be treated leniently for committing these offences.

32.Charge 6 and 7: I consider that a starting point of 9 weeks, reduce to 6 weeks after 1/3 discount.

33.Charge 8: I adopt a starting point of 6 months, reduce to 4 months after 1/3 discount. I also order D1 to be disqualified from driving any vehicle for a period of 2 years from today.

34.I also order Charge 6 to 8 to run concurrently, a total sentence of 4 months.

Totality

35.Charge 1: 24 months

Charge 2: 24 months

Charge 4: 24 months

Charge 6: 6 weeks

Charge 7: 6 weeks

Charge 8: 4 months

36.Charge 1, 2 and 4 are committed on different days, different occasions, they are separate and distinct offence, against this background, I order 8 months from Charge 2 and 4 to run consecutively to Charge 1. It arrives at a total of 40 months’ imprisonment (8 + 8 + 24 = 40 months).

37.I further order 2 months from the total sentence (4 months)  of Charge 6 to 8 to run consecutively to Charge 1.

38.The final sentence is now 42 months’ imprisonment.

Order

39.D1 is to serve a sentence of 42 months’ imprisonment.