HKSAR v. Cheang Weng Tong and Others

DCCC454/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 454 OF 2010

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Reasons for Sentence

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1.All three defendants in this case were charged with an offence of burglary. All three pleaded not guilty to that charge but indicated that they were prepared to plead guilty to the alternative charge of theft, a plea which has been accepted by the prosecution.

2.The particulars of the offence were that on 27 March in 2010 at the O Pui Shan Boys’ Home in Cheung Hang Road, Sham Shui Po, they stole 4 bundles of metal wire valued at $100.

3.The Summary of Facts discloses that the boys’ home is a government property and it has been vacant since 2007. The offence was committed in the early hours of the morning of the Saturday, 27 March, at about 3.25 am. The previous night, police officers set up an ambush at the premises expecting persons to come to burgle the premises. The reason that they were expecting burglars is that there was a hole cut in the wire fence around the premises.

4.At 3.25 on 27 March, the three defendants were observed by the police officers to enter the area around the building through the hole that was cut in the perimeter fence. As the defendants were in the open area outside the building, the officers heard the 1st defendant saying, “Let’s move away this first”, and he was clearly referring to the bundles of electric wire, the subject of the charge.

5.The officers observed the defendants moving the 4 bundles of electric wire. And having observed that, the operation went overt and the defendants were arrested. The 3rd defendant said that they were in the vicinity because they were hiking.

6.At the material time there were no residents or staff inside the premises. And the value of the 4 bundles of electric wire is about $100.

7.At the date of the offence, D1 had a clear record. D2 and D3 have previous convictions. In the case of D2, there is one similar conviction. In the case of D3, there are 2 similar convictions.

8.On 28 September 2006 both D2 and D3 were jointly convicted of conspiracy to steal. They were sentenced to 2 years and 4 months’ imprisonment and they were released from that in 2009.

9.In mitigation, in relation to D1, I am told that he is 39 years of age. He was educated to Form 1 standard. He works as a collector of material for recycling and earns some $350 per day from that employment. He is married and has got 3 children, 2 boys aged 19 and 16 and a daughter aged 6. The two younger children are in full-time education. He lives in Wong Tai Sin in government housing for which he pays $1,380 per month. His wife works but he does not know what her income is.

10.D2 is 30 years of age. He is single, and his father has died some time ago. His mother is 54 and a housewife. And he lives alone. He is educated to Form 2 standard. When he came out of prison in 2009, he got a job earning some 8 to 10,000 per month as a van driver.

11.His counsel on his behalf has pointed out that they were not equipped, none of the three defendants were equipped with any tools to enable them to carry out a burglary. The hole in the perimeter fence was there before they arrived and there were no residents in the premises which has been derelict since 2007.

12.In the mitigation for D3, I am told that he is married, his wife is 31 and lives in China and he has an elder brother. It was pointed out by his counsel that the premises where the offence was committed was somewhat remote. It was an isolated spot and it would have been very difficult to carry anything away from the premises. And again he pointed out that the perimeter fence had already been cut. The defendant has been working as a transportation worker earning some $8,000 per month.

13.In the case of D2 and D3, they have been in custody since their arrest in connection with these matters. In the case of the 1st defendant, he was kept in custody for one week when he was arrested.

14.In the case of D2 and D3, I note that, as I have pointed out, they were previously convicted of obviously a more serious charge of conspiring to steal for which they were sentenced to 2 years and 4 months’ imprisonment. And not long after their release, they were involved in this joint offence. I take the view that in their case a sentence of 6 months as a starting point is appropriate. I reduce that to 4 months to reflect the guilty pleas which have been entered today. And those sentences will enable their immediate release from custody.

15.In the case of D1, at the time of this offence, he had a clear record and I note that he was in the company of people who had previously been convicted of conspiring to steal, so I take a very different view on his involvement in this matter.

16.I am going to send you to prison for 14 days and suspend that for one year. What that means is that you will not go to prison today. If you re-offend in the next year, you will go to prison for 14 days and that will be in addition to any other sentence for the new offence. Do you understand that?

1ST DEFENDANT: Yes.