HKSAR v. Lam Chi Cheung and Another

DCCC706/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 706 OF 2011

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Reasons for Sentence

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1.The defendants have pleaded guilty to a conspiracy to commit burglary and that is on 22 March and 23 March at the Kam Fook Jewellery in Kowloon City.

2.They have accepted the facts of the case and I have convicted them.

3.The facts show that the defendants were detected as a result of what is described as an “Anti-burglary operation” by the police on the evening of 22 March.  The surveillance shows the 1st defendant was seen getting into this taxi in the evening of that day.  The taxi had eventually driven over to Kowloon City near to a rear lane at Fu Lo Tsun Road, where the jewellers is situated.

4.The 3rd defendant and a man who is described as a wanted person were also seen coming into the vicinity in the early hours of the next morning.  Eventually things were seen to be put into the taxi by the defendant and the wanted person.  The 3rd defendant was seen to walk away.  The police intercepted the taxi and the 1st defendant was intercepted when he fled from the taxi. 

5.Seized from the boot of the taxi were breaking equipment including a hydraulic jack, two crow bars, screw driver, pliers, a cutter and nylon bags.  A torch and a pair gloves and masks were found in the 1st defendant’s possession. 

6.Enquiries at the rear lane revealed a hole in the wall which was about 2½ by 2½ feet was drilled inside a toilet at the ground floor of 49 Fuk Lo Tsun Road.  The hole went into the Kam Fook Jewellery Limited, however the person in charge of the jewellery shop said that no loss had been suffered by them.

7.There was a video interview record conducted with the 1st defendant.  He said the wanted person had proposed the burglary and it was supposed to be at an accounting firm in Kowloon City.  He had eventually been led on the day in question to the rear lane by the wanted person where they met the 3rd defendant.  He had been directed to drill a hole in the toilet wall and he had done so.  It took about two hours and he had formed the view that they had got the wrong place and he had told the wanted person that. It seems they agreed to abandon the project and made their way back to the taxi.

8.The 3rd defendant remained silent in his video recorded interview but it is clear that he accepts his involvement on the basis that he was there, at a minimum as a look out for the burglary.

9.I have seen antecedents of both defendants.  The 1st defendant is aged 51.  His is married and has two children 6 and 13 years old.  He has a substantial criminal record, nine previous recorded convictions, five of which are burglary related.  He was first sentenced for 2½ years in 1983 for burglary and then further offences in 2000, 2002.  Finally, in 2009 2 years and 2 months for a burglary.  He has also served very long prison sentences for robbery back in 1988.  He was last discharged from prison in February of this year.  I believe he could be described as a professional burglar as he has a number of previous convictions and sentences for that offence.

10.The 3rd defendant is aged 65.  He has a son aged 15 years old.  He also  has a lengthy criminal record, 15 recorded previous conviction events, 9 of those, I believe, are burglary.  He has been involved in offences since 1970.  The first recorded burglary being in 1994.  He received 18 months’ imprisonment.  He has been imprisoned again in 1994 and 1998, 2003 for 2 years and gain in 2005 for another 2 years.  And then finally in 2008, for 26 months for attempted burglary.  He was last discharged from prison in November 2009.

11.The defendants have, in their mitigation fully accepted their responsibility and involvement in this offence.  The 1st defendant is remorseful.  He understands that his wife has been left to look after his two daughters.  He has a 90 year old mother with health problems.  He says that at his age now at 51 he has decided he wishes to turn over a new leaf.  He says he was obviously not the mastermind of the offence.  Other than the damage to the wall there is no loss to any parties and he certainly formed the impression they drilled into the wrong place but in any event the attempt was abandoned before any loss could be incurred by the victims. 

12.The 3rd defendant puts forward similar mitigation.  He says that he is remorseful as well.  He says he became involved only at a very late stage.  He does agree he was keeping guard though.  He says that he received no reward for this.  As I say he is 65.  He has a son who he is on good terms with. This defendant has lengthy prison sentences in the past and it is said that at his age a prison sentence would be more difficult than it might be for a younger man and he asks for a chance.

13.Clearly this burglary showed signs of being a professional style of burglary.  A jewellery shop was targeted and the equipment used by the defendants required a degree of knowledge and skill to apply and the kind of method of burglary involving breaking in through a wall involves, obviously, a team effort.  These are all what we describe as aggravating factors in a burglary as is the fact the defendants themselves are not strangers to burglary offences having committed a number in the past. 

14.In terms of the offence itself mitigating factors would be that in fact there was no loss to the victims.  Something went wrong with the location they chose to break in through and the effort was abandoned.

15.I have to determine the appropriate starting point for sentence.  In a normal non-domestic burglary the starting point would be 2½ years’ imprisonment but that is not the appropriate starting point in respect of offences of this nature.  There is no clear starting point in the authorities but obviously a higher starting point must be taken.  It seems to me that the fact that the defendants have the appearance, on their criminal records, as being professional burglars and the fact that this is a professional style burglary are in fact one and the same factors. 

16.Taking this into account I consider that I will adopt a starting point for this conspiracy to burgle at 3½ years’ imprisonment, 42 months.  The defendants are entitled to a one-third discount on that sentence as a result of their plea of guilty.  This will mean that each defendant will serve a term of 28 months’ imprisonment.