HKSAR v. Chan Yui

DCCC1093/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1093 OF 2011

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Reasons for Sentence

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The Charge and the Facts

1.The Defendant pleaded guilty to two charges of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

2.The facts were relatively simple. The Defendant burgled the same building on both occasions. At the time, the external wall of the building was under renovation. Therefore, scaffoldings were erected outside the building.

3.In the evening of 21 July 2011, renovation workers left a room on the rooftop of the building secured but unattended. The room was temporarily lent to the contractor for the storage of renovation tools. In the morning of 22 July 2011, when the foreman went to the room to get his tools, he found that the door of the room had been prized open. There were signs of ransacking and the tool box inside the room had also been prized open. Upon checking, various items including digital cameras, hydraulic drills, an electric screwdriver and an electric saw worth a total of about HK$18,000 were missing.

4.In the afternoon of 31 July 2011, the occupier living below the rooftop heard some noise coming from the room. A report was therefore made to the police. When the police attended the scene, the Defendant was seen by the police constable staying on guard at the entrance of the building climbing down the scaffolding. The Defendant was wearing a pair of gloves and carrying a rucksack on his back at the time.

5.After putting up a brief struggle, the Defendant was arrested. Upon search, some of the items which were found missing on 22 July 2011 were retrieved from inside the Defendant’s rucksack. In a subsequent video-recorded interview, the Defendant admitted under caution that he had burgled the room on 22 July 2011 and 31 July 2011. He further admitted that he had sold the valuable items and retained the other tools for his own use.

Mitigation

6.The Defendant is now aged 28. He is single and was living with his parents prior to his arrest. He has been before the court on 7 occasions with 7 convictions. They were mainly drug and theft related offences.

7.The Defendant was last released in April 2011. He was then employed as a lift installation worker, earning about HK$10,000 per month. However, Mr. Lee, who acted for the Defendant, told the court that the Defendant has now lost his job because of his commission of the present offences.

8.In mitigation, it was said that the room should be treated as non-domestic premises for it was only used for the storage of tools and equipment. Mr. Lee also emphasized that the value of the stolen items involved in the second charge was small.

Sentencing the Defendant

9.Although the building itself was a residential building, and that it was occupied by the residents during the renovation period, I am prepared, for sentencing purposes, to treat the room on the rooftop as non-domestic premises given that it was only used for the storage of tools and equipment at the time.

10.Now, although Mr. Lee suggested that the Defendant, at the time when he entered the building, was merely seeking to pick up any discarded or unused items left on the site, it was an admitted fact that the door of the room was locked on both occasions and that the Defendant had to prize open the door in order to go inside to steal. Therefore, on any view of the matter, the burglaries were not of the opportunistic type where a Defendant simply gained entry into unlocked premises when passing by the unit and then took the items therein. In other words, this case is no different from a standard burglary of non-domestic premises, the sentencing guideline in respect of which is one of 2½ years.

11.I have carefully considered the matters put forth in mitigation on behalf of the Defendant, other than his plea which would attract a one-third reduction, I find nothing which would warrant reducing the sentence further.

12.30 months reduced by one-third is 20 months’ imprisonment. Therefore, the Defendant is to serve a term of 20 months for each of the 1^st and the 2^nd charges.

13.Although the same room was involved in the two burglaries, it remains a fact that the offences were committed on two different days. It is also clear that the Defendant repeatedly burgled the room as he, after the first burglary, must have noticed that tools and equipment were stored inside the room and that it was unattended.

14.Considering all the relevant facts and the totality principle, I take the view that an overall term of 24 months should sufficiently reflect the Defendant’s culpability in these two offences, I therefore order that 4 months of the 20-month term in respect of the 2^nd charge are to be served wholly consecutively to the term in respect of the 1^st charge, the rest to be served wholly concurrently, making a total term of 24 months’ imprisonment.