HKSAR v. Tsoi Kam Sin and Another

DCCC 989/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 989 OF 2010

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Reasons for Sentence

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Charge and facts

1.The 1^st and the 2^nd Defendants plead guilty to burglary of Ground Floor, No. 49 Battery Street, Yau Ma Tei, Kowloon (“Premises”). There were 3 tenants. They ran their own jade retailing or processing business. There were 3 gates, one for each tenant, to access their place from outside the Premises. Any gate could gain access to other parts of the Premises including the Ground Floor and the Mezzanine Floor.

2.At 6:30 p.m. on 24 July 2010, the last tenant locked and secured the Premises before leaving. At 2:25 a.m. on the following day, a police officer spotted the 2 Defendants acting furtively outside the Premises. The 2^nd Defendant was carrying a shoulder bag. He passed something to the 1^st Defendant, who started to tamper with one of the gates. About 5 minutes later, the 2 Defendants left.

3.At 4:25 a.m., they returned and entered the Premises through one of the gates.  The police called for reinforcement. At 4:30 a.m., they were arrested.  Each admitted burgling the Premises with tools. 

Personal background and mitigation put forward

4.The 1^st Defendant is 56 years of age.  He has worked as a gardener.  He has a string of convictions for dishonesty offences, including 6 burglaries, the last dated 2 November 2006 for 2 years’ imprisonment.  He is also in breach of a suspended sentence for theft (TM/1441/10).  His wife is suffering from hypertension and heart disease.  His daughter is a university student.  He is the sole breadwinner. 

5.The 2^nd Defendant is 54 years of age.  He is a casual decoration worker.  He has a string of convictions for dishonesty offences, including 7 burglaries, the last dated 7 May 2008 for 22 months’ imprisonment. He is suffering from chronic waist pain as a result of injury at work in 2001. His wife has chronic illness which requires monthly medical treatment.  His son is a university student.  The 2^nd Defendant is the sole breadwinner. 

Sentencing guidelines for non-domestic premises

6.In R v Wong Man [1993] 1 HKC 80, the Court of Appeal said that the proper starting point for non-domestic premises would be 2½ years’ imprisonment for a first offender of full age (as per Macdougall JA), as later affirmed in HKSAR v Sim Ka-wing, CACC 450/2000.

Sentence I pass

7.There are 2 aggravating features:

(1) Joint enterprise;

(2) Repeat offending.

8.Based on Wong Man (above) and the 2 aggravating features, I take a starting point of 3 years and 3 months in each case.  I give a one-third discount for the plea of guilty.  There are no other mitigating factors.  The sentence is 2 years and 2 months for each Defendant.

9.There is no reason not to activate the 1^st Defendant’s sentence of 2 months suspended for 12 months.  I order it to be activated and served consecutively to the sentence imposed today.