HKSAR v. Wong Siu Ming

DCCC911/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 911 OF 2009

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Before: Deputy District Judge Casewell

Date:   10 December 2009 at 9.41 am

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Reasons for Sentence

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1.The defendant has pleaded guilty to one offence of attempted burglary and one offence of theft. He has agreed the facts and I have convicted him of these offences on the basis of the facts admitted. The facts admitted make out these offences and the 1st charge concerns an attempted burglary on a storeroom at the top floor or the rooftop of Lin Fat Building in Yuen Long. The defendant is in fact a resident himself of Lin Fat Building and he was seen by a security guard of that building tampering with the lock on the iron gate of the storeroom on the rooftop. When he was challenged he ran away.

2.The police went to the defendant’s residence where they found a number of items used in construction and it was established that those items had been stolen from the rooftop earlier that day and those items were things such as copper pipes, construction materials, tools, including a saw, drill, spanner and a spade. The defendant also made admissions when he was interviewed. He said he had taken a hammer, a pair of gloves and spanner to burgle the storeroom and he intended to steal things there in order to sell them. He was discovered by the security guard when he was using the hammer to tamper with the door lock.

3.At 5 o’clock on the same day, which is about half an hour before the attempted burglary, he stolen the tools and construction materials from the rooftop of the Lin Fat Building. The rooftop was unlocked and the items were unattended. Then he had taken the items home intending to sell them. From those facts it can be seen that nothing was recovered as a result of the attempted burglary and that the items the defendant did succeed in stealing in the 2nd charge were of low value.

4.The defendant admitted his criminal record. He is 36 years old. In 1995 which is about 14 years ago, he was convicted of a burglary and received a Probation order. Subsequently the defendant went to a Drug Addiction Treatment Centre in 1995 and 1997. In the year 2000/2001, he received prison sentences for being involved in offering for sale infringing copies and such and in the same year he received a substantial sentence of 48 months for trafficking in dangerous drugs. That was in fact the defendant’s last prison sentence. So since his release from that sentence he has only committed a minor offence of gambling. Now what I can deduct from that is the defendant has a poor criminal record with a number of sentences of imprisonment and has one previous conviction for the same offence although a long time ago.

5.Now in mitigation, it is said the defendant is 36 years old, divorced in 2004, now living with his girlfriend and her son who is aged eight. He contributes $1,000 to his mother and before his arrest he was working as a casual delivery worker earning about 6,000 a month and of that he was supporting his girlfriend and son with $3,000 a month. The defendant has obviously pleaded guilty to the charges, he has said through counsel he is remorseful and obviously in respect of the 1st charge, the defendant had not at that time entered the property and did not steal any items.

6.Although the burglary took place on the rooftop of a residential building, the storeroom itself was not a residential part of that building. The rooftop was a common area but the storeroom was a private area used for the storage of goods. The items that were stolen from the common area were of not high value.

7.The defendant has also written a letter expressing his remorse and the fact that he will not be able to support his girlfriend and her son for some time.

8.The 1st charge obviously is a serious offence. The offence of attempted burglary is as serious as burglary itself. There are clear guidelines for sentence. I have no reason to depart from those guidelines in this case. As far as the 1st charge is concerned, I will regard the storeroom as a non‑residential premises. It was obviously unoccupied and the defendant did not anticipate that he would meet anybody inside it, and I will take the starting point for sentence on that 1st charge at 30 months’ imprisonment and reduce that to 20 months’ imprisonment for the defendant’s plea of guilty.

9.Now, on the 2nd charge I acknowledge that the value of the items was low but the theft was from a common area in the building and the defendant does have a poor criminal record. I will take a starting point at 9 months’ imprisonment and reduce that to 6 months’ imprisonment for the defendant’s plea of guilty.

10.Now the offences themselves represent two separate raids on the rooftop to take everything that was of value up there and so there is accordingly a degree of overlap between the two offences. I shall therefore order that 4 months of the 2nd charge runs consecutively to the 1st charge and 2 months concurrently, giving a total sentence of 24 months’ imprisonment.