HKSAR v. Lam Wai Shun

DCCC1253/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1253 OF 2010

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Reasons for Sentence

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1.I convicted the defendant after trial of the charge of attempted burglary.

2.The particulars of the offence are that he together with two other youths, one aged 15 and the other aged 17, attempted to enter part of a building, which is referred to as Shop No. 1 on the Ground Floor, Kam Wah House, Choi Hung Estate in Kowloon, and they did so with intent to steal therein.

3.The facts as I found proved in this cases were that at about a quarter to one in the morning on 21 August 2010, a person who lived in an adjoining block of the building where the offence was committed, noticed the defendant and two other males standing outside the newsagent store, which is where the offence was committed. 

4.He noticed the defendant holding one of the two combination locks securing the cupboard.  He was pressing the buttons of the padlock and the two other youths were nearby.  As a result of what he saw, this person immediately made a police report and the police attended a short time later.

5.When the police officers attended, one of them went to observe the scene and he saw the defendant still with the combination padlock in his hands and still pressing the buttons of that padlock.  The two youths with him were keeping lookout.       

6.Before the police moved in the defendant gave up his attempt to unlock the padlock and all three youths then started to leave the scene, and it was at that juncture that the police moved forward and arrested all three of them.  The defendant told the police that he intended to get into the store in order to steal cigarettes. 

7.The owner of the store, who lived in the same block, arrived at the scene and confirmed that nothing had been lost or damaged, and that one of the padlocks, the buttons had been pressed down.      

8.The defendant has a clear record.  He is 22 years of age and I called for a background report upon the defendant.  The report indicates that he came from a working class family and he had attained Form 5 in 2006.  His primary school, he was quite successful there, but his academic record deteriorated when he went to secondary school, and his final year there were marked, mainly for his absenteeism from school.

9.I am told that he plans to resume study relating to design work in the future.  The defendant lives with his mother and father. His father works as a relief mini-bus driver and his mother is a part-time church labourer.

10.As counsel has acknowledged, for burglaries at non-domestic premises the usual starting point is 2½ years.  There are some unusual features of this case however.   The premises which the defendant was attempting to enter was a cupboard underneath a stairwell in the block of this estate.

11.The offence was clearly committed on the spur of the moment.  The defendant and the two youths with him were wandering around fairly aimlessly having randomly caught a bus to go to this estate.          

12.The cupboard was secured by two combination locks and the defendant was attempting to open one of the locks by trying to work out what the correct combination was and it was virtually impossible that he would have been successful.  The lock he was attempting to open had eight digits and the other lock had ten digits.  There was no attempt made to force either of the locks or to force the cupboard door.

13.The defendant has a clear record, and as counsel has said, this offence was out of character.  One aggravating feature of the case in my view is that the defendant committed this offence in the company of two youths, one of whom was only aged 15 years, and he had a clear record.

14.A number of cases have been referred to me, and in particular a recent case of HKSAR v Law Tin Yam, CACC258/2010.  This concerned a burglary of a domestic premise, a cubicle in a flat in a street in Shamshuipo. The occupant of the unit had gone on holiday to the mainland for a fortnight, leaving the cubicle unattended and unlocked; in fact, there was no lock.                           

15.The appellant in that case occupied an adjoining cubicle in the same flat and he had entered the premise with a view to seeing if there were any cigarettes in the cubicle.  The appellant faced financial hardship and had no money to buy cigarettes on his own.  

16.The appropriate starting point in those facts was determined to be a sentence 15 months’ imprisonment and the appropriate discount was given for the applicant’s guilty plea.

17.Looking at the fact of this case, this was an opportunistic offence and it was an attempt and the place the defendant attempted to gain access to was a cupboard under a staircase.  

18.Looking at all those features of the case it seems to me that an appropriate starting point would be one of 12 months’ imprisonment.

19.I therefore sentence the defendant to 12 months’ imprisonment.