HKSAR v. Yan Tak Sze
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DCCC74/2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 74 OF 2010 ----------------------
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--------------------------- Reasons for Sentence --------------------------- 1.The defendant pleaded guilty to 4 charges of "Burglary", contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210 and 1 charge of "Theft". Summary of Facts 2.At all material times, Madam TANG Yuk-lan resided with her family in a 3-storey house located at No.18 Henderson Road, Happy Valley. One security guard, 3 Thai domestic helpers and 2 drivers (including the defendant) were employed to serve the household. The drivers were only allowed to enter the garage and the living room on the Ground Floor of the house. 3.Madam TANG's bedroom was located on the 2nd Floor. There was a secret room inside her bedroom in which valuable items were stored. Only Madam TANG, her husband, the defendant and some decoration workers knew about the existence of this secret room. The defendant and decoration workers became aware of the secret room in early 2009 when they were asked to help refurbishing it. 4.On 10 December 2009, Madam TANG found valuables missing from the secret room. Upon enquiry, one of the domestic helpers, Madam Jantharanak (PW2), informed Madam TANG that she saw the defendant on the 2nd Floor in the room of Madam TANG's daughter about a week ago. When questioned by PW2 on the spot, the defendant told her that he was looking for a paper bag. PW2 fetched him one and he left. Madam TANG felt suspicious and reported the matter to the Police. 5.Police investigation revealed that between 5 March and 7 October 2009, the defendant pawned 16 items on 10 occasions at a pawnshop in Wanchai. The pawned items included the stolen properties particularized in Charges 1 to 5. 6.The defendant was arrested on 15 December 2009. Under caution, he admitted that he entered the secret room and closet in Madam TANG's bedroom without permission on a few occasions. After being shown the pawnshop records, the defendant admitted that 14 out of the 16 pawned items (i.e. 1 watch and 13 gold pieces) were stolen by him from Madam TANG's house. From those 14 items, he obtained a total of $69,100 from the pawnshop. Mitigation & Sentence 7.The defendant is now 46 and has a clear record. Prior to his arrest, he was employed by Madam TANG as a driver earning $12,000 per month. He is now unemployed and relies on welfare. He is divorced and has a 20-year-old daughter. 8.Defence counsel Mr. SO submitted that the defendant committed the offences because he needed money to cure his long-term back pain caused by sciatica so that he could continue to work. Mr. SO has handed up a bundle of letters written by the defendant's ex-wife, daughter, niece, brothers and friends. All of them spoke highly of the defendant praising him as a kind, responsible and helpful person. They also confirmed that the defendant has exhausted his own funds on medical expenses arising from his sciatica. Finally, Mr. SO informed the court that the items particularized in Charges 2 to 4 (which carry a total value in the sum of $19,000) have been recovered. The remaining stolen items, unfortunately, have been disposed of by the pawnbroker. 9.The normal starting point for domestic burglary is 3 years imprisonment. I accept that the defendant is not a typical criminal; he foolishly resorted to illegal means to solve his problem. To some extent, he has my sympathy. On the other hand, an element of breach of trust is involved, which is an aggravating factor for the purpose of sentencing. 10.Based on the total value of all the stolen items and all the relevant factors including the mode of stealing and the breach of trust element, I consider an overall starting point of 3.5 years imprisonment to be appropriate in this case. Hence, for each charge, I adopt a starting point of 3.5 years. One-third discount is given for his guilty plea, reducing the sentence to 2 years and 4 months (28 months). Apart from this, I see no other mitigating factors which warrant any further reduction. The sentence I pass for each charge is 2 years and 4 months (28 months) imprisonment. Having considered the totality principle, I order the sentences for Charges 1 to 5 to run concurrently. In other words, the total prison term for all 5 charges is 2 years and 4 months.
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