HKSAR v. Law Tin Yam

DCCC585/2010

IN THE DISTRICT COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 585 OF 2010

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Reasons for Sentence

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1.This morning, the defendant pleaded guilty to one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Chapter 210.

2.The Summary of Facts, which was admitted by the defendant, revealed that the defendant, PW1 and PW2 were living in the same flat in New Un Chau Building but they occupied different cubicles in that flat. In the morning of 16 April 2010, the defendant went into PW1’s cubicle which had no door lock and stole therefrom a packet of cigarettes. At the time, PW1 was not inside as he had left his cubicle to visit his family in the mainland on 11 April 2010. When PW1 returned on 26 April 2010, he found signs of ransacking of his cubicle and he noticed that a packet of cigarettes was missing. As the defendant’s entry into PW1’s cubicle was witnessed by PW2, PW2 told PW1 about it and a report was made.

3.After the defendant was arrested and when under caution, the defendant admitted that he entered PW1’s cubicle to steal the packet of cigarettes as he had no money to buy cigarettes and he knew that PW1 was on holiday as well as that his cubicle was not locked.

4.The defendant is now aged 48 and is single. He has only received primary education, and at the time of his arrest, he was unemployed and was on social security. The defendant has a history of schizophrenia, and for that, the court has obtained two psychiatric reports on him before taking plea in order to determine whether he was fit to plead. Both reports provided an affirmative answer about his fitness to plead, and he indeed pleaded guilty to the charge this morning.

5.The defendant has five previous conviction records, including one of theft, for which he was sentenced to 14 days’ imprisonment on 2 June 2010. The present offence is his first burglary offence.

6.In mitigation, Miss Lam for the defendant said that in this case the defendant was akin to a “sneak thief”. He did not break into PW1’s cubicle. He was just being opportunistic and made use of the chance of PW1’s absence from the cubicle to enter and steal. At the material time, the cubicle was not locked.

7.Miss Lam also said that as the defendant only stole a packet of cigarettes to satisfy his needs, the value of the goods involved in this case was a very minor amount, just about HK$10.

8.In HKSAR v Sim Ka Wing unreported CACC 450/2000, the Court of Appeal observed that the conventional starting point for burglary can be lowered in the case of an opportunistic burglar, akin perhaps to the “sneak thief” who walks into an open office to steal whatever he can find. (See also HKSAR v Cheung To Ming [2006] 2 HKLRD 259.)

9.In the present case, I accept that the defendant is more like a “sneak thief”, but at the same time I bear in mind that domestic premises in which one is expected to be able to have privacy and enjoy one’s life were involved in this case. I also note from the Summary of Facts that there were signs of ransacking of PW1’s cubicle. Although the only property stolen by the defendant was a packet of cigarettes, that could not be said to be akin to stealing food to satisfy one’s basic needs. The defendant clearly entered PW1’s cubicle to steal, not just for the sake of satisfying his smoking habit, and that explained the signs of ransacking although what the defendant eventually got was just a packet of cigarettes.

10.Having considered all the facts in this case and the matters put forth on behalf of the defendant, I accept that he was more like a “sneak thief”, and instead of adopting the usual starting point of 3 years for burglary of domestic premises, I consider a starting point of 24 months to be appropriate in this case. The defendant pleaded guilty and he would receive one‑third reduction for his plea. Other than that, I do not see any other mitigating factors.

11.The defendant is therefore to serve a term of 16 months’ imprisonment.

Appeal against sentence allowed: see CACC258/2010 dated 19 November 2010