HKSAR v. Tang Sin Tung and Another

DCCC303/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 303 OF 2011

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Reasons for Sentence

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1.1st and 2nd defendants have pleaded guilty to a joint charge of burglary of a doctor and dentist clinic in Kowloon at about 11 pm on 17 January this year. Obviously, the premises were vacated at the time.

2.The facts of the case are very straightforward. 2nd defendant was responsible for entering the premises.  He used tools. He was found with a crowbar and a screwdriver.  Doors had been forced open within the clinic, premises ransacked and valuables stolen, including cash of over HK$10,000, a camera and two laptops.  1st defendant acted as a lookout outside the clinic.  Clearly, both acted in concert.

3.I have heard mitigation today for both defendants.  Their best mitigation is their plea of guilty. 

4.The 1st and 2nd defendants are 49 and 41 years old respectively, and both have appalling criminal records.  The 1st defendant has 12 previous convictions, of which 4 are burglary convictions, the last being in 2004.  All other convictions involved offences of dishonesty.

5.The 2nd defendant has over 40 previous convictions.  Most relate to obtaining property by deception, theft and fraud. The 2nd defendant has one previous conviction of attempted burglary in 2007.  Sadly, since the mid-1990s, the 2nd defendant has probably spent more time in prison than out of prison.  Both can be described as repeat offenders; recidivists. 

6.The customary sentence for a burglary of a non‑domestic premises is 2 and a half years’ starting point in the absence of aggravating factors or mitigating factors.  That customary sentence has been reiterated in many authorities and, in particular, Cheng Chi Shing CACC236 of 2000.  That authority discussed the circumstances where a departure from the customary sentence is justified.

7.In this case before me, after hearing mitigation and considering the facts, I do find aggravating factors exist.  These defendants acted in concert.  There was more than one burglar.  Having heard evidence of surveillance officers, I am sure there was a degree of professionalism and planning in this burglary.  In this burglary, there was forcible entry and damage to property.  In addition, the loss that would have been suffered is not insignificant.  Lastly, there are so many previous convictions that enhancement for the defendants’ recidivism is appropriate in my view.  I should say I am not limiting this to previous convictions.  I am saying there are so many previous similar convictions and convictions related to dishonesty.

8.I refer myself to the authorities of R v Chan Pui Chi [1992] 2 HKLRD 830 and Chan Kwong Chun CACC299/2008.  Both these authorities refer to instances where enhancement for this particular factor is appropriate.

9.Defendants, please stand up.  As a result of my findings, I will increase the customary starting point by 6 months and I take a starting point of 3 years’ imprisonment for this offence.  You are both entitled to a discount of 1 year for your pleas of guilty.  For this offence, you are both sentenced to a term of imprisonment of 2 years.