HKSAR v. Tsoi Shing Bun

DCCC 902 / 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.902 OF 2009

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1.The defendant faces one charge of burglary, contrary to s.11(1)(a) and (4) of the Theft Ordinance, Cap.210. He pleaded guilty to the charge.

2.The facts that the defendant admitted to are as set out in the file summary of facts and I will not repeat them here in full. The gist of the facts are that, the defendant entered a non-domestic building to look for his former employer. He was not able to find him, but in the meantime decided to steal in order to obtain some money thinking that the thing he was going to steal belonged to his former employer. While he was picking up some decoration equipment at the 6th floor of the building, he was spotted by PW2 and PW3 who shouted at the defendant. The defendant escaped through the rear staircase but was later identified and subsequently arrested when he re-entered the building posing as a worker there.

Previous:

3.The defendant has 8 previous convictions, most are drug related and none of them are similar to the present offence.

Mitigation:

4.The defendant is 43. His personal background are found in the record of antecedents. The defendant’s parents are receiving CSSA and are both of ill health. The defendant’s wife is a new immigrant to Hong Kong and so is not entitled to CSSA. The defendant’s son is receiving CSSA.

5.A letter from Society for the Aid and Rehabilitation of Drug Abusers was produced by the defence. The defendant left the centre on 19th May 2009. He has been able to keep in contact with the social worker and there is indication that he is willing to get rid of his drug addiction and try to reform himself.

6.Mr. Ting submitted that the defendant went to the building trying to look for his former employer who owed him wages for about a year. It was an unoccupied building, undergoing decoration works and the 6th floor was not yet even partitioned. The defendant mistakenly thought the tools belonged to his previous employer, out of anger that he decided to steal them in order to get his compensation.

7.Mr. Ting recognizes the standard starting point for non-domestic burglary is 2.5 years. He however pointed out that in a typical case of opportunistic burglary, the starting point can be lowered and he relied upon the case of HKSAR v Sim Ka Wing, CACC450/2000. The defendant went to look for his former employer to get the overdue wages. Only when he was not able to find him that he decided to take what he thought belonged to the former employer. The defence urged the court to adopt the slightly lower starting point of 2 years. Mr. Ting also pointed out that the defendant had made full admission to the police upon being interviewed and he had pleaded guilty at the first instance.

Law:

8.Burglary of non-domestic premises attracts a starting point of two and a half year’s imprisonment, subject to any mitigating or aggravating factors. As Mr. Ting for the defendant rightly pointed out, this conventional starting point can be lowered in the case of the opportunistic burglar: HKSAR v Sim Ka Wing, CACC450/2000.

Sentence:

9.In accepting what was put forward by the defendant in mitigation, I find that it was an opportunistic burglary. I accept the story put forward by the defendant, at first to the police and today in court, that he wanted to look for his former employer to get back his wages, but on not finding him decided to steal something that he thought belonged to the former employer in order to get back his due. I have also taken into consideration that the 8 previous convictions were mostly drug related and that the defendant had never been sent to prison before.

10.Having considered all the circumstances, I will adopt a starting point of 2 years imprisonment, granting the defendant the usual 1/3 discount for his guilty plea, I reduce the sentence to 16 months’ imprisonment.