HKSAR v. Wu Chi Man and Another

DCCC310/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 310 OF 2011

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Reasons for Sentence

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1.The defendants were initially jointly charged with an offence of attempted burglary, the premises concerned being a Japanese restaurant on the ground floor of Wai Sun Building in Jaffe Road, Wan Chai. The 1st defendant pleaded guilty to that offence, but the 2nd defendant, who is his girlfriend, pleaded guilty to an alternative charge of going equipped for stealing.

2.The facts admitted by the defendants state that, about 1.30 on 13 February 2011, the manager of the restaurant concerned closed and locked the roller shutter of the restaurant and left the premises.  The switch of the electric roller shutters installed in the front wall of the restaurant were facing the street and was locked at the material time.  About an hour later a patrolling police officer saw the defendants outside the restaurant, looking around suspiciously.  The defendant passed a pair of black gloves to the defendant, who put the same on, and she then stood back and acted as a lookout.  It is those black gloves which are the subject of the charge to which she has pleaded guilty. 

3.The officer then observed the 1st defendant take out a screwdriver and use a screwdriver to prise open the locked metal cover of the switch to the restaurant’s electric roller shutter.  The officer immediately intercepted the defendants in front of the restaurant, and upon seeing the police the 1st defendant dropped the screwdriver on the ground. Prising marks were found on the switch cover.  After a body search a torch, four screwdriver heads, a mask and a skeleton key were found in D1’s possession.

4.Both defendants were arrested and, under caution, the 1st defendant admitted that it was a person called “Ko Lo” who had instructed him to burgle the premises.  He said that the 2nd defendant just accompanied him and had nothing to do with the burglary.  The 2nd defendant said she accompanied the 1st defendant to work. 

5.In subsequent records of interview the defendants changed their evidence and denied the offence.  The 1st defendant denied that he had made a confession at the scene and alleged that he had refused the request of “Ko Lo” of committing the burglary.  The 2nd defendant said she was just going in the direction of the restaurant to look for the 1st defendant at the material time.  At the material time the 1st defendant attempted to enter the restaurant as a trespasser intending to steal and the 2nd defendant possessed a pair of black gloves for the purpose of stealing. 

6.Both defendants have lengthy records.  The 1st defendant has appeared before the court on 14 previous occasions.  At the time of this offence he was on bail for another matter, in fact, and committed this offence whilst on bail for that offence.  He has a number of convictions for dishonesty.  I note that in October 2009, for burglary, he was sentenced to 2 years' imprisonment.  The 2nd defendant also has a history, a considerable number of previous convictions, 12 court appearances, and 16 offences of theft.  She was before the court in July of 2009 when she was sentenced to terms of imprisonment. 

7.In mitigation I am told that the 1st defendant is 39 years of age.  He was previously married, and now divorced.  He came to Hong Kong when he was young.  He lives with his mother his counsel said when he is not in prison.  His mother unfortunately suffers from hypertension and diabetes.  She is now aged 67. 

8.The defendant has been in custody for five months for this offence.  The offence for which he was on bail was committed in October of last year, and I am told that that offence involved the attempted theft of a bicycle.  He was sentenced to 4 months' imprisonment for that offence.  That sentence was imposed on 30 June 2011. 

9.As regards the 2nd defendant, she is 34 years of age.  I am told that she was brought to Hong Kong as a 1 year old child, and sadly her parents died soon thereafter.  She has had a disturbed background, I am told, and her first court appearance was at the age of 18.  I am told that her usual occupation is that of a sales lady or a promotion worker, and she could go back to that employment when she’s been released from prison.  She was living with the 1st defendant at the time of the offence.  I am told that whilst in custody it has been discovered that she has a 2 centimetre lump in her breast, and she last saw the prison doctor on 28 June.  Clearly this is a matter which has caused her some concern. 

10.As with the 1st defendant, she has been in custody for five months in relation to this offence.  She has pleaded guilty to alternative charge of going equipped for stealing and, as counsel has urged upon me, that she pleaded guilty to this offence as soon as the charge was put to her. 

11.Regards the 1st defendant, as I say the starting point for a non-domestic burglary is 2½ years' imprisonment.  This is an attempt burglary.  The burglary was stopped by the intervention of police officers.  It was committed in the middle of the night. A body search of the defendants shortly after his arrest had revealed a torch, four screwdriver heads, a mask, a skeleton key.  The defendant has an appalling record and was sentenced to prison for burglary as recently as 2009.  He was on bail for this offence at the time of the commission of this offence. 

12.Looking at all those factors I have decided not to increase the starting point for this offence.  I take a starting point of 2½ years and I give him full credit for his guilty plea.  So that will be reduced to 20 months' imprisonment.  The defendant is currently serving a sentence of 4 months’ imprisonment.  This offence, as I have stated, was committed whilst he was on bail for that offence. Unless there are any exceptional circumstances the law requires that sentences for offences committed on bail should be served consecutively.  No exceptional circumstances exist in this case, so his sentence of 20 months will run consecutive to his current sentence. 

13.The 2nd defendant also, as I have indicated previously, has an appalling record.  She was seen passing a pair of gloves to the defendant in this case outside the premises which were to be burgled.

14.I have taken into account all the factors that have been urged upon me in mitigation and I propose to take a starting point of 12 months for this offence and reduce it by one-third to reflect the guilty plea. The sentence will therefore be one of 8 months’ imprisonment.