HKSAR v. Cheng Chi Wai and Another

DCCC878/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.878 OF 2010

---------------------------

---------------------------

Offences: 1-5) Burglary (入屋犯法罪)

Reasons for Sentence

1.There are 2 defendants in this case. They face 5 joint charges of domestic burglary together. D1 pleaded guilty to charges 1, 2, 3 and 5, while D2 pleaded guilty to charges 3, 4 and 5.

Facts

Charge 2 to 5

2.At around 1pm on 26^th April 2010, D1 and D2 were seen by Police arriving in the vicinity of View Villa, the building being burgled in charges 2, 3, 4 and 5, in a private car with registration number NJ 5897. D1 got out of the car and entered View Villa while D2 drove the car away. The car was later found at a parking meter space unattended.

3.D2 also entered View Villa via the main entrance moments later.

4.About 45 minutes later, D2 came out of View Villa. D1 followed, carrying a black computer bag and a black rucksack. Once outside, they separated and went different directions.

5.D1 got into a taxi which was later intercepted by the Police. D1 was searched and found in his bags equipment typically linked to break-in burglaries. They included crowbars, screwdriver and 2 pairs of gloves. They also found valuables and jewelleries inside the bags. 2 mobile phones were found on D1’s person. The Police arrested D1 at 2pm, who remained silent under caution.

6.D2 was also arrested by Police officers separately and a car key for NJ 5897 was retrieved from the waistband of his underpants. A mobile phone was also seized from D2. The Police arrested D2 at 2:05pm, who remained silent under caution.

7.Inquiries were made after the arrests and it was confirmed that the flats in charges 2 to 5 had all just been burgled. Through the occupants of the individual burgled flats, the properties set out in the particulars of the charges were confirmed to have been taken. All the stolen properties were recovered from D1’s bags that he was carrying when arrested.

8.The total value of properties taken in the 4 burglaries is approximately HK$61,513.

Charge 1

9.Further inquiries after the arrest of D1 revealed that D1 was also involved in a break-in burglary of the flat in charge 1 on 23^rd March 2010, where the properties set out in the particulars were stolen. None of the stolen properties were recovered. The total value of the properties stolen is approximately HK$530,700.

10.CCTV footage of the burgled flat’s building showed D1 and another male inside the building 2 hours before the burglary was reported to the Police. It showed D1 going up the building with an empty iron cart and an empty plastic bag. When D1 left the building, the plastic bag had a rectangular object inside and was placed inside the iron cart being pulled by D1.

11.No occupants were inside any of the burgled premises at the time of each of the 5 burglaries. The final paragraph of the Amended Summary of Facts, which both defendants had admitted to, states that D1 and D2 were in a joint enterprise to burgle the 5 properties.

12.The charges that D1 and D2 had pleaded not guilty to were ordered to be kept on file, not to be proceeded with without the leave of the court.

Previous

13.D1 has a total of 18 previous convictions, 7 of those were for theft. D1 was last convicted in May 2004 for burglary when he was sentenced in the District Court to 18 months’ imprisonment.

14.D2 has 8 previous convictions. 6 of those were for gambling and there are no convictions for any crime related to dishonesty.

Sentencing Authorities

15.For a burglary committed at domestic premises, the normal starting point is one of 3 years’ imprisonment. In the case of Attorney General v. Lo Ching Fai [1996] 1 HKC 747, the Court of Appeal said the following,

“13. It is now well-established, as one sees from the decision of this Court in AG v. Lui Kam Chi [1993] 1 HKC 215, that three years' imprisonment is in general the appropriate starting point for a single offence of burglary of domestic premises committed by a first offender of full age in circumstances unattended by either particular aggravation or particular mitigation.

14. And as we pointed out in R v. Tong Hoi-fung [1988] 1 HKLR 610 at p. 611 I-J, this Court "has said time and time again that where there is more than one offence of a similar nature committed at different times, it is right for the court to award a higher sentence than if there had been only one offence."

15. In the present case, we are of the view that the appropriate overall starting point is 3 1/2 years' imprisonment.”

Sentence

16.There is nothing in either D1 or D2’s mitigation to warrant a departure from the usual starting point of 3 years’ imprisonment.

D1

17.In relation to charges 1, 2, 3 and 5 of D1, I will adopt a starting point of 3 years’ imprisonment for each charge, reduced to 2 years’ imprisonment in recognition of D1’s guilty pleas.

18.D1 has one previous burglary conviction in 2004. He played the major role in charges 1, 2, 3, and 5. Taking into consideration the principle of totality, I will order that 3 months of each of charges 2, 3 and 5 be served consecutively to the sentence in charge 1, the rest to be served concurrently. Total sentence for D1 in relation to all 4 charges is therefore (24+9=33) 33 months’ imprisonment.

D2

19.These are D2’s first burglary convictions. I will adopt a 3 years starting point for each of the 3 charges, reduced to 2 years' imprisonment in recognition of his guilty pleas. Taking into consideration the principle of totality, and bearing in mind the lesser role that D2 played in the burglaries, I will order that 2 months of each of charge 4 and 5 be served consecutively to the sentence of charge 3, the rest to be served concurrently. D2 is therefore sentenced to a total of (24+4=28) 28 months' imprisonment for the 3 charges.