HKSAR v. Chui Kam Kee and Another

DCCC403/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.403 OF 2010

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Reasons for Sentence

1.The defendants together face one charge of burglary, contrary to s.11(1)(b) and (4) of the Theft Ordinance, Cap.210. Particulars of the offence are that, the defendants on 5^th March 2010, having entered as trespassers part of a building known as Room 3201, 32/F, Heng Lung House, Fu Heng Estate, Tai Po, New Territories, stole therein cash of HK$4,000, 2 watches, 1 gold medal and 7 bags containing 21 pieces of jade.

Summary of facts

2.At around 9pm on 4^th March, PW1 returned home to the charge address at Room 3201. She however forgot her keys and left them plugged in the lock of the iron grille. At around 10pm, her son, PW2 came home, but the keys were no longer in the lock.

3.The following day, 5^th March, PW1 left her flat to find a locksmith to change the door lock. When she returned home at around 3pm, she found the iron grille half opened and the wooden door ajar. Suddenly, D1 and D2, both wearing caps, rushed out of the flat and pushed PW1 on to the ground to make their escape. PW1 later reported the matter to the police. Upon checking, PW1 found various items missing, including cash $4,000, a lady wrist watch, a gentlemen wrist watch, a golden medal with a plastic frame and one green paper bag containing 6 pieces of plastic bags which contained 21 pieces of jade in total.

4.Later on the same day, at around 7:45pm, police officers visited PW4’s apartment at Room 3003, Heng Lung House, Fu Heng Estate, 6 Chung Nga Road, Tai Po, New Territories to investigate a case concerning PW4 herself. When there, the police officers saw D1 and D2 in the apartment. Since their clothing resembled the wanted persons’ in relation to the earlier burglary case involving PW1, police officers made enquiries with the defendants.

5.With PW4’s consent, officers searched her apartment and found the bundle of keys that PW1 had left in her door lock previously, some money and other items that PW1 had claimed to have been stolen. PW4 denied possession of these items.

6.Under caution, and while still in PW4’s apartment, D2 admitted that he found the keys on the ground outside PW1’s flat on 4^th March 2010. He had used the keys to enter PW1’s flat earlier in the day and together with D1 they stole the things now found in PW4’s apartment. D2 was arrested, cautioned and he admitted to the burglary under caution.

7.Under caution, and while still in PW4’s apartment, D1 admitted that he was involved in the burglary of PW1’s flat. D1 said he had followed D2 to PW1’s flat and ransacked it before PW1 returned and they fled. D1 alleged that he did not take anything with him while the loot was kept by D2. D1 was then arrested.

8.A cautioned video recorded interview was later on conducted with D2. During the interview, D2 admitted that in the night of 4^th March, he came across the keys on the floor outside PW1’s flat and took them. At around 2pm on 5^th March, he suggested to D1 to burgle the flat together. They went to the flat, pressed the door bell. When no one answered, they used the keys to gain entry into the flat, ransacked the flat and stole the charge items from the flat. When they were still in the flat, someone came back and so they immediately fled. They had spent part of the stolen cash on food and drinks. The $160 later found in PW4’s apartment was from the stolen cash.

9.Similarly, a cautioned video recorded interview was conducted with D1. During the interview, D1 admitted that at around noon on 5^th March, D2 told him he had keys to a flat in Heng Lung House. D2 suggested going into that flat to search for valuables. D1 agreed. He followed D2 into the flat. D2 first pressed the door bell and when no one answered, they used the key to enter the flat and once inside stole various items including the charged items. When PW1 suddenly returned to the flat, they immediately pushed PW1 away and fled. They returned to PW4’s apartment by stairs. Some of the things they had stolen from the flat were dropped and lost whilst they were fleeing.

Previous

10.D1 has 10 previous convictions, 2 for theft. D2 has 16 previous convictions, with one similar conviction for burglary back in 1998 when he was sentenced to 6 months’ imprisonment in Fanling Magistracy. The latest conviction of D2 was in 2006 when he was convicted for robbery in the District Court and was sentenced to 2 years and 8 months’ imprisonment.

Mitigation

D1:

11.D1 is 34 years old, single. Before this offence, he was a part time construction worker earning $3,000 per month. His parents are deceased. Prior to this offence, he was living in a public estate unit in Tai Po. He was educated up to form 3 level. After he left school, he had been working as a kitchen assistant and leakage repairman, earning about 8-9k per month. D1 admitted to the crime upon arrest and pleaded guilty. The reason why D1 stole was because he was under employed as a construction worker, he stole for money for food and to repay money owed to his friend. According to the facts, the current offence was suggested by his friend D2 and D1 simply followed. The keys and the loot were kept by D2 and not in D1’s possession. Part of the cash stolen were spent on food and drinks. According to the previous record, D1 has 2 similar offences but the latest one is already 4 years ago, whereas the other one was in 1993. D1 is therefore not an habitual offender.

D2:

12.D2 is 41 years old, married. His wife is 38, they have 4 daughters from 8 months to 20 years old. The whole family live in a public housing estate in Kwai Tsing East Estate in Kwai Chung, New Territories. Unfortunately, his wife is unemployed because she has to take care of the youngest child. The defendant has also been unemployed for quite some time and the whole family is relying on CSSA. Whenever D2 can manage, he worked as a casual worker and earned about $2,000 per month.

13.D2 is only educated up to form 1 level, and it was suggested by D2’s legal representative that may be why he has 16 previous convictions. The previous burglary offence was committed in 1998, which was quite some time ago. The latest conviction was for robbery, but that also occurred in 2006. It was submitted that the offence was committed not by design, rather by “accident”. The defendant went to visit his friend who lives in the same building, PW4, and he happened to see the keys in the door of PW1’s flat. There was no planning, no equipment was used, no forcible entry and as such no aggravating factors in the circumstances. It was an opportunistic crime. A letter written by one of the defendant’s daughter was submitted in mitigation.

Sentencing guidelines

14.There is no dispute that the burglary was committed at a domestic premises. For a burglary committed at domestic premises, the normal starting point is one of 3 years’ imprisonment (see Attorney General v. Lo Ching Fai [1996] 1 HKC 747).

Sentence

15.I agree with counsel for D2 that the present case is closer to an opportunistic crime in nature rather than an organized burglary, although bearing in mind that the keys were lost on 4^th March and the defendants burgled the premises the following day in the afternoon. There was some waiting and some planning, but the basic nature of this burglary is opportunistic.

16.I do not find any difference between the culpability of the 2 defendants. One proposed, the other accepted and they were in it together.

17.Although both defendants have certain criminal records involving dishonesty, I do not think they are yet professional burglars and as such I will not sentence them on that basis.

18.I find that a simple adoption of the tariff starting point of 3 years’ imprisonment is appropriate given the circumstances of the case.

D1:

19.Given his plea of guilty, 1/3 discount is granted and D1 is sentenced to 2 years’ imprisonment.

D2:

20.Similarly, given his plea of guilty, 1/3 discount is granted and D2 is sentenced to 2 years’ imprisonment.