HKSAR v. Ip Wye Him Byco and Another

DCCC1000/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1000 OF 2010

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Reasons for Sentence

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1.D1 and D2 you have both pleaded guilty to a joint charge of burglary, contrary to sections 11(1)(b) and (4) of the Theft Ordinance, Cap 210, Laws of Hong Kong. The particulars being that, you on 11 August of last year, having entered as a trespasser to the Ground Floor, 49 Nam Kok Road, Kowloon City stole therein HK$20,000 cash and six bags of copper wire.

2.The brief facts which you have both admitted establish that the victimised premises were occupied at the material time by a recycling company who you both worked for. Indeed, I gather that you, D1, still are employed by the company, the proprietor of whom speaks highly of you.

3.When the proprietor of the company returned to the premises he found that six bags of copper wire, valued at HK$10,000 and HK$20,000 cash had gone missing.  Upon viewing one of the CCTV screens he saw you, D1, approaching the premises shortly after midnight on 11 August.  When he confronted you two defendants about the stolen property both of you admitted taking part in this burglary.  The copper wire has been recovered but the cash has not.

4.All burglaries, of course, are serious offences but what is an aggravating feature in this case, as far as both of you are concerned, is obviously that this offence involves a breach of trust as you both worked for the victimised company at the time. 

5.As far as you, D1, are concerned, you are only 20 years of age and you have a clear criminal record.  I am told, and accept, that you committed this offence under the influence and persuasion of others.  From the reports that I have obtained on you - and I refer to the probation officer’s report and the report from the Commissioner of Correctional Services, I am satisfied that this offence is wholly out of character. 

6.  You have come from a challenging and sad background.  Your father left home when you were only seven years of age and your mother committed suicide just over three years ago.  Despite your difficulties you have managed to make something of your life by working hard and keeping out of trouble.  You have been working for your present employers, the victimised company in this case, since the end of 2008 and, as I have already mentioned, your employer speaks highly of you.  He is willing to continue your employment with the company and describes you as being honest and hard working.

7.In addition to all this you pleaded guilty at the outset of this trial and have never sought to deny your involvement.  You have assisted the prosecution by providing a statement to them and were prepared to testify in the trial of your co-defendant, the 2nd Accused. I have no doubt that it was because of this fact that the 2nd Defendant, on the second day of these proceedings, decided to plead guilty as well. 

8.All of these matters go very much to your credit.  I do not lose sight of the seriousness of burglaries whether they be of domestic premises or commercial premises and am well aware that the normal starting point for sentence with regard to burglaries of commercial premises is 2½ years’ imprisonment.  However, in your case, due to the matters that I have referred to I believe you deserve a break and I am going to give you that break by taking what I am well aware is a wholly exceptional course. 

9.You are recommended for a period of community service and I am going to make a community service order for 200 hours.  In the performance of this order you must carry out your work diligently and follow all the lawful commands of your supervising officer.  Any breach of this order will have the consequence of you being brought back before this court and being dealt with accordingly as a result of the breach.  Do you understand that?

1ST DEFENDANT: Yes.

10.Right, I make that order - Community Service Order - in respect of the 1st Accused for 200 hours.  My clerk will give details to you as to who you should report to.

11.D2, as far as you are concerned you are in a wholly different position to that of the 1st Defendant.  You are 22 years of age and have a number of previous convictions, including robbery and theft. You came to Hong Kong from Shenzhen in 2003, and indeed, quite soon after arriving in Hong Kong, you committed your first offence. 

12.Very little has been put before this court by way of mitigation and, indeed, there is very little mitigation in your case save for your plea of guilty, but that guilty plea arrived, as I have said, only when you were very aware that the 1st accused had given a statement to the prosecution implicating yourself and he indicating that he prepared to give evidence for the prosecution.  You deserve some credit for your plea of guilty but not, in my judgment, the full one-third.

13.There is also the aggravating feature of a breach of trust that I have earlier spoken of.  In your case I adopt a starting point of 2½ years’ imprisonment.  I will increase this starting point by six months to 3 years’ imprisonment to take account of the aggravating feature that I have identified.  I will discount this sentence by nine months’ imprisonment to take account of your plea of guilty coming to 2 years and three months’ imprisonment in your case.