HKSAR v. Yu Wai Hung

DCCC1262/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1262 OF 2009

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Before: H H Judge Browne

Date: 18 December 2009 at 10.18 am

Offence:  Burglary (入屋犯法罪)

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Reasons for Sentence

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1.The defendant has pleaded guilty to three charges of burglary.  All the offences were committed at the same building, albeit in different rooms in that building, the building being Sui Keung House in the Siu Sai Wan Estate, Siu Sai Wan.

2.The first offence was committed on 5 September 2009.  The defendant entered a room on the 15th floor and stole a digital camera.  Four days later, he entered a flat on the 8th floor and stole a mobile phone and a bag containing $6,000 in cash, a Hong Kong identity card and a home visit permit.  On 26 September he entered a flat on the 14th floor with intent to steal.

3.The facts admitted by the defendant in relation to the first charge disclose that at 6.15 in the morning on 5 September 2009, whilst a lady, Miss Mok who is 23 years of age, was sleeping on the upper bunk of a bed inside Room 1502 at Sui Keung House, she was wakened by the noise coming from the room.  She looked down and found the defendant looking through her property.  She asked what he was doing and he fled the scene.  She later discovered that her camera, which was valued at $1,000 and which had been placed on top of her wardrobe, was missing.  At the material time, the door of the flat was closed but was not locked.

4.The second offence was committed at 4.50 in the morning.  The occupant of the flat, a Mr Chu (PW2), was sleeping at one of the bedrooms inside the flat, his mother having left the flat earlier and left the door unlocked.  Later in the morning, PW2’s father told PW2 that he had found the defendant standing at the living room at around 5.50 am.  PW2 found that his mobile phone and his bag containing cash in the sum of $6,000, his identity card and home visit permit were missing, and reported the matter to the police.

5.The facts in relation to the third offence are that at 10 o’clock on 25 September, Mr Chan (PW3) and his family went to bed leaving the door and gate of Room 1405 closed but unlocked.  Mr Chan got up about 5 o’clock in the morning to feed his infant son.  Whilst feeding his son, he saw flashes of a torch in the living room from his son’s room.  He went out of his son’s room and found the door and gate opened.  He went out of his flat and saw the defendant running toward the back staircase.  Nothing was stolen and a report was made to the police.

6.At the time that offence was being committed, police officers were patrolling Sui Keung House.  A few minutes before the offence, the officers had seen the defendant acting suspiciously on the 14th floor.  At around 5.22 am they saw the defendant coming out of Room 1405.  They tried to stop the defendant but he fled the scene.  He was, however, later intercepted and when he was, he was found to be wearing a pair of gloves and holding a torch in his right hand.  He was found on the corridor of the 7th floor.  Under caution, he admitted that he had entered Room 1405 and he had intended to steal from that flat.

7.The defendant told the police that he also lived at Sui Keung House and the officers went to his flat to conduct a search.  From a cabinet inside the defendant’s flat, the police recovered the camera belonging to PW1 and the bag belonging to PW2.  The defendant admitted that he had stolen this property from the victim’s premises.  With regard to the identification documents and the mobile phone, the defendant told the police that he had thrown those away.

8.The defendant does not have the advantage of a clear record.  However, the only convictions recorded against him were a considerable time ago.  They were 29 years ago, in 1980, and he was placed on probation in respect of those matters.

9.I am told that the defendant is now 46 and is divorced.  Notwithstanding this divorce, he still maintained a friendship with his ex-wife who is in court today.  They have an 11-month old son.  He was born in January this year.  Apparently, the divorce occurred this year after the birth of the baby and the reason for that was that the wife found it difficult to cope with the spending habits of the defendant.

10.I am told that the defendant’s parents are deceased and he has no contact with his siblings.  I am told that this year the defendant has been under severe stress.  His marriage finished and he became unemployed.  Until March of this year he had been working as a clerk in a paint trading company.  I am told that because of the stress, the defendant suffered from severe depression and attempted suicide.  He was in hospital for his psychiatric problems and was discharged in June of this year.  As a follow-up, he was receiving counselling and attended a retraining programme, which was under the auspices the Tung Wah Group of Hospitals.  I am told that after the retraining programme the defendant was optimistic and intended to start a new life.  He felt that because of the assistance he had received, that there were expectations of him and he felt pressure because he could not fulfil those expectations.  At the time of the offence he was living in a Jockey Club Home for single people and his spending had got out of control and he went astray.

11.Counsel has advised the defendant that because of the serious nature of these offences a custodial sentence is inevitable.

12.Two letters have been placed before the court.  The first is from his ex-wife.  She said that she was very sorry when she learnt of the events which had brought the defendant before the court.  She said the defendant finds it difficult to express himself and has lived in a suppressed environment.  She says that he has been a responsible father who regularly visits their son and wants to shoulder the responsibility of being a father.  She said he has always been a good and courteous man and has been very supportive, notwithstanding their divorce.  She asked the court to deal with the defendant leniently.

13.The second letter is from the defendant himself.  He says that he is very sorry for the offences.  Since his arrest in connection with these offences he says that he now understands the value of liberty and he wishes to extend his apologies to the victims of the burglaries.  He also feels that he has let down the counsellors from the Tung Wah Group of Hospitals.  He says that he is concerned about his son and wishes to be a good father.  I am told that after his discharge from hospital he has made regular visits for counselling to the Eastern Hospital and in fact the last visit was on 9 December whilst in the custody of the Correctional Services Department.

14.With regard to the offences I am told that the defendant indicated that he wished to plead guilty at the first opportunity and he was co-operative with the police.  However, the defendant has pleaded guilty to three serious offences.  They are domestic burglaries.

15.I take into account as regards getting access to the premises that none of the premises were locked; the doors were closed but not locked.  However, at the times the defendant entered these premises it was almost inevitable that the premises were going to be occupied.  These are not large premises and a confrontation with the occupants of the premises was highly likely.

16.In the first offence, the 23-year old female occupant of the flat was asleep at 6.15 when she found the defendant looking through her property.  In the second offence, the father of the victim in that offence found the defendant standing in the living room at 5.50 in the morning.  In the third offence, the victim in that case had got up at 5 o’clock in the morning and saw the defendant in his son’s room with a torch.  This is a frightening situation for the occupants of domestic premises.

17.I note and I take into account the mitigation that to all intents and purposes the defendant is a person of good character and these actions are entirely out of character.  He has been suffering from depression, has lost his job and his marriage has broken up.  Out of his relationship, they have a new baby.  All these matters have put pressure on the defendant.  I accept that.

18.The usual starting point for a domestic burglary is a sentence of 3 years’ imprisonment.  In balancing the aggravating and mitigating features of this case, I have decided not to increase the starting point.  The defendant will be given full credit for his guilty plea, so that starting point will be reduced to a sentence of 2 years in respect of each offence.

19.I have now to go on to consider the question of totality, whether these sentences should be run concurrently, consecutively or partly consecutively.  Again, I have looked at all the mitigating and aggravating features of the offences and considered the overall criminality involved.

20.Having taken all the various features into consideration, I have decided to impose concurrent sentences in respect of each of the offences.  The total sentence therefore will be one of 2 years’ imprisonment.