HKSAR v. Nip Man Yui

DCCC898/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 898 OF 2011

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Reasons for Sentence

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1.The defendant has pleaded guilty to two charges, the 1st being attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap.210 and 159G of the Crimes Ordinance, Cap.200, the 2nd charge being burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210.

2.These two charges were committed in reality three days apart.   Both took place late at night early in the morning when these premises were empty.  Both premises of the two charges were commercial premises, non-domestic premises, as opposed to a domestic premise which will make a difference to sentence.

3.The facts of the case are very straightforward. Charge 1 was a failed attempt to burgle a recycling company shop, failed because the defendant and/or his accomplice were unable to open the door and open the roller shutter.  The CCTV cameras were moved obviously to try and evade the burglars being filmed; being captured on CCTV. 

4.The defendant’s case is that he was only a lookout for this attempted burglary.  The roller shutter and lock was damaged. The estimated cost of repairs was HK$1,000.

5.The 2nd charge, the defendant admits and explains that the wanted person of Charge 1 telephoned him after the first aborted attempt of 19 May and asked him to be a lookout again, this time for a similar shop in Tsuen Wan.  It was the wanted person who drove the defendant to the premises in the early hours of the morning.

6.The defendant says it was the wanted person that entered the shop by breaking the lock.  The defendant says it was the wanted person that stole the items and conveyed them to the vehicle.  

7.The police spotted the defendant and the wanted person loading the vehicle with stolen items.  The wanted person managed to escape, whereas the defendant tried to escape but was caught after a search of a nearby building.  He made a full admission under caution.  

8.The defendant’s best mitigation today is his plea of guilty.  He has many previous convictions.  He has several similar previous convictions but those burglary convictions were as far back as 1978 and 1979.  His convictions range from triad offences, violent offences, offences of dishonesty, dangerous drugs and trafficking in dangerous drugs.         

9.He has been in and out of prison or institutions for a very long period of time. 

10.I have heard full mitigation and the defendant’s family background.  Sadly, the defendant’s elderly mother died recently whilst he was in custody.  The defendant’s father is elderly and there are two teenage sons which his family have been caring for.

11.One of the defendant’s sons and his elder brother are in court here today to show support.  The defendant’s family are also willing to help the defendant, as part of his mitigation, to repay compensation for the damaged locks of both premises.  I will make an order as to compensation and take that into account. 

12.The normal customary sentence for a burglary of a non‑domestic premise is a 2½ years’ starting point where no aggravating or mitigating factors exist.  I see no good mitigating reason to reduce the starting point nor are there any reasons to increase the starting point.  I see no real aggravating factors. 

13.I will take, after considering the facts and mitigation, a 2½ year starting point for each offence.

14.Defendant, please stand up.

15.You are entitled because of your plea to a discount of one-third.  After discount that will leave a sentence of 1 year and 8 months.  I am going to reduce that sentence by 1 month for compensation payable to the victims.  I will also take into account the totality principle and the authority of HKSAR v Hui Wing Chu CACC365/2010, where the totality principle is discussed in a case with very similar charges. 

16.For Charge 1, you are sentenced to 1 year and 7 months’ imprisonment, for Charge 2 you are sentenced to 1 year and 7 months’ imprisonment, but for this 1 year and 7 months, 6 months will be consecutive to Charge 1 and the balance will be concurrent.  That would leave a total sentence of 2 years and 1 month. 

17.I make a compensation order payable today of $1,000 to the victim company of Charge 1 and $700 to the victim company of Charge 2.  That is a total compensation of $1,700 payable today.