HKSAR v. Wun Shu Fai (Aka Wan Shu Fai)

DCCC 1073/2021

[2024] HKDC 450

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1073 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of burglary[1]. The burglary took place at the premises of LG/F, Po Hing Mansion, No. 20 Rutter Street, Sheung Wan. The defendant has agreed to the facts, and I have convicted him of the offence.

Amended Summary of Facts

2.At the time of the burglary, the residential apartment was rented by the first prosecution witness (“PW1”).  On 4^th August 2021, the apartment was left locked.  When PW1 returned at around 22:15 hours, he saw that the living room had been ransacked.

3.The defendant, who was wearing a mask and gloves, rushed out from the bedroom suddenly, while holding PW1’s camera bag and a black watch box.  PW1 managed to subdue him before making a police report.  The police soon arrived at the apartment and arrested the defendant.

4.The defendant was searched and was found to have two 11cm long screws in his right back jeans pocket.  A pair of gloves and a mask, which were worn by the defendant when PW1 first saw him, were also seized from the floor in the living room. 

5.Further, a recycling bag containing, inter alia, a glass-hammer, a T-shirt, a glove, and a pile of masks, which none was PW1’s property, was also found in the living room.

6.No property was stolen from the apartment. However, some of the glass near the back door handle was broken, and the repair cost was about HK$3,000.

7.Various samples of exhibits were sent for forensic examination. Laboratory findings indicate that the glass fragments collected from the glass-hammer and the jeans worn by the defendant, could have been from the broken glass of the back door.

Previous Convictions

8.The defendant has 26 previous court appearances, with 45 convictions.  3 of the convictions were for burglary, 35 for theft and 2 for shop theft. 

9.His last two convictions for burglary were on 15^th August 2018 and 10^th December 2020, where he received a sentence of 33 months’ and 18 months’ imprisonment respectively.  He was last discharged from prison on 10^th March 2021.

Personal background and Mitigation

10.The defendant is now aged 52. He was born in Hong Kong and attained Form 5 education.  He is divorced with a son who is in his 30’s and was living alone at the time of his arrest.  He has had no gainful employment since 1996 and had been living on CSSA.

11.Defence Counsel, Mr. Kelly, pointed out that the black rainstorm signal was in force at the relevant time, the defendant having had dinner with his friend, was sheltering at the rear of the premises when he took the opportunity to burgle the premises. 

12.The defendant was not part of a group, and there was no vandalism or injury to the PW1.  In summary, there was no professional planning, organization, or execution.

13.Letters of mitigation written by the defendant and his pastors were handed up.  The defendant stated that his father was around 90 odd years old, suffering from chronic disease and was hospitalized for multiple times.  His mother was around 80 odd years old and needed to look after his father.  He felt guilty of not being able to take care of them. 

14.The pastors in their letters said the defendant was remorseful, and both of them asked this court to pass a lenient sentence.

Reasons for Sentence

15.The approach to sentencing in this type of cases is governed by guideline sentencing.  The normal guideline sentence for burglary, the starting point to be adopted in the case of a residential burglary for a person of clear record who pleads not guilty would be 3 years’ imprisonment. [2]

16.In my view, there is no valid justification to depart from the normal sentencing tariff. Therefore, I adopt a 3 years’ imprisonment as the starting point.

17.In HKSAR v Cheng Wai Kai[3], the Court of Appeal pointed out that the starting point could be adjusted upward if there were aggravating circumstances which would include:

“(1)  the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment;

(2)  the offence is committed by two or more people;

(3)  the offence targets at substantial premises and involves substantial properties;

(4)  the offender is a professional burglar and not just an opportunist;

(5)  the offender has previous convictions, particularly previous conviction of similar nature, and

(6)  the offender commits multiple offences.”

18.The agreed Amended Summary of Facts shows that the glass of the back door was broken, but I accept that the damage was not particularly serious and that it does not elevate the gravity of the offence in this case to a level above.  For this reason, the starting point for the sentence will not be enhanced on this ground.

19.Although the use of the glass-hammer by the defendant to break the glass of the back door of the premises does suggest some planning and cannot be considered to be opportunistic, I find that the circumstances of the execution of his plan was not sophisticated enough to warrant the sentence to be enhanced on this basis.

20.The defendant committed the offence alone.  However, the burglary was committed at around 10 pm, a time when residents would usually be home but not yet gone to bed, there was a risk of any of the occupants in the residential units being subjected to the horror of having their home invaded by a burglar. 

21.In this case, PW1 was not at home at the time but there was in fact confrontation did take place when he returned home and saw the defendant.

22.I also find the fact that the defendant committed the present offence less than 5 months after his last release is an aggravating factor.  This is the defendant’s fourth conviction on a count of burglary.  His previous conviction for burglary was in December 2020.  In addition to burglaries, the defendant has been convicted previously for 35 counts of theft and 2 counts of shop theft over the years, which those were related to dishonesty.  The defendant was clearly undeterred and chose to commit the current offence within a relatively short time after his release.

23.In HKSAR v Tang Tsz Cheung[4], the Court of Appeal pointed out that if such an offence is repeated, a heavier sentence is likely to be imposed for repetition.

24.For the aggravating factors above, I am satisfied that the starting point is to be increased by 3 months, leading to a sentence of 3 years and 3 months’ imprisonment.

Mitigating factor

25.As far as the mitigating factors are concerned, not being able to take care of the parents and having difficulty to keep contact with the ill father after being sent to prison cannot be regarded as a mitigation factor.  

26.It was not the defendant’s first time committing to the same offence.  He should have known the consequences well when he committed current offence at the time.

27.The only mitigating factor in this case is the defendant’s guilty plea.  Granting the defendant the usual one-third discount for his guilty plea, he is sentenced to 2 years and 2 months’ imprisonment.