HKSAR v. Chung Pit Chun and Another

DCCC 839/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 839 OF 2010

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Reasons for Sentence

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Background

1.Both D1 and D2 are convicted upon their own guilty pleas on the 1^st Charge of Theft and the 2^nd Charge of Burglary.

2.The facts admitted by D1 and D2 reveal that:

(i) Upon receipt of report that electric wires were stolen from the building at No.208 Tung Chau Street, Shamshuipo (the “Building”), PC7784, PC8260 and other police officers went to the Building for investigation. They found that the electric wires outside the flat on the 3^rd floor of the Building were missing.

(ii) The police officers then went upstairs to the 4^th floor. There were two flats on the 4^th floor, namely Flat A and Flat B. Flat A was further divided into 4 rooms, i.e. Room 1 to Room 4. At the material time, Flat A was unoccupied.

(iii) The police found torn closure notices stating “do not enter unless authorized” on the main door to Flat A on the 4^th floor. The police officers found that the door to Flat A was opened. The iron grille and the door to Room 4 of Flat A were also opened.

(iv) Inside Room 4, PC7784 saw D1 cutting an electric wire and D2 peeling an electric wire. On the floor of Room 4, the police officers found a black bag containing a piece of electric wire (the “Electric Wire”), two cutters, a pair of cutting pliers and a coil of copper wire.

(v) Under caution, D1 admitted that he had come to Room 4 to steal electric wires because he had no money, and that he had stolen some wires from the 3^rd floor with D2 before going up to the 4^th floor to steal wires.

(vi) Under caution, D2 admitted that he stole electric wires from Room 4 because he had no money, and that he and D1 took the electric wire outside the flat on the 3^rd floor before they proceeded to the 4^th floor to steal electric wires.

(vii) The resident of the flat on the 3^rd floor confirmed that the Electric Wire was the piece of electric wire missing outside his flat.

Antecedents of the D1 and D2

3.D1 has 30 previous convictions since 1983. Out of those 30 convictions, there are 3 convictions of theft, 1 conviction of attempted theft and 2 convictions of burglary. He is 42 years old. He received education up to Form 1 level. He claimed that he was a drug addict.

4.D2 has 22 previous convictions since 1993, out of which there are 6 convictions of theft and 1 conviction of burglary. He is 33 years old. He received education up to Form 1 level. He claimed that he was a drug addict.

Mitigation

5.In mitigation, it was submitted that D1 had been unemployed since March 2008. D1 therefore started to pick up scrap metal to support his living. At the material time, he went to the Building to see if there was any scrap metal to take away. As he saw the doors to Flat A on the 4^th floor and Room 4 therein were open, he went inside, hence the 2^nd Charge. It was submitted by counsel for D1 that the items left inside Room 4 were abandoned and of insignificant value. 

6.Counsel for D2 submitted that D2 used to receive Comprehensive Social Security Assistance at $2,000 per month. A letter from D2 was submitted to this Court asking for leniency. Counsel for D2 also submitted the judgment in HKSAR v Cheung To Ming CACC 406/2005 inviting the Court to depart from the conventional starting point for burglary cases on the basis that the present case was a “walk-in” burglary as the doors to Flat A on the 4^th floor of the Building and Room 4 therein were not opened by D1 or D2.

7.Both counsel for D1 and D2 asked this Court to, applying HKSAR v Cheung To Ming CACC 406/2005, adopt a starting point of 18 months’ imprisonment for the 2^nd Charge.

Sentence

8.With regard to the 1^st Charge, Public Prosecutor Miss Chan advised that the value of the stolen Electric Wire was less than $100. Upon inspection I find that the Electric Wire is of very insignificant value. I will adopt a starting point of 3 weeks’ imprisonment for the 1^st Charge for each of the Defendants.

9.As for the 2^nd Charge, I am prepared to accept that the present case was a “walk-in” burglary.  Coupled with the fact that Room 4 was unoccupied, the items inside were abandoned and the entire Building, except the flat on the 3^rd floor, had been taken over by a developer, I will adopt a starting point of 18 months’ imprisonment for the 2^nd Charge for each of the Defendants.

10.Both D1 and D2 pleaded guilty to the charges, I will give each of them 1/3 discount for their guilty pleas. I do not consider there being any other mitigating factors, the sentences on the 1^st and 2^nd Charges for each of the Defendants are 2 weeks and 12 months’ imprisonment respectively.

11.The two offences were committed on the same day one after another. I order sentences on both charges to run concurrently, thus making a total of 12 months’ imprisonment for each of the Defendants.