HKSAR v. Tam Tsz Hung

DCCC1193/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1193 OF 2011

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Reasons for Sentence

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1.The defendant enters a plea of guilty to two charges of “Burglary”, brought against him under section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

Facts

2.The facts to which the defendant agrees are as follows.

3.On 20 September 2011, the defendant entered as a trespasser the building at Nos. 12-12A Ha Heung Road, To Kwa Wan, a residential block which the defendant knew to have been vacant for several months, and removed from the corridors on the 2nd and 3rd floors and from Flat C on the 2nd floor a total of seven copper pipes, which he sold for $700 (Charge 1).

4.On 22 September 2011, the defendant returned to the same building, entered again as a trespasser Flats A and B on, and the corridor of, the 1st floor and stole 69 copper pipes and three water meters (Charge 2).  A police officer intercepted him for enquiry when he emerged from the building and found in his possession a screwdriver.

5.Under caution, the defendant admitted to the offences, saying he broke the iron gate and wooden door on the 1st floor of the building to gain entry. 

Conviction

6.The court finds the defendant guilty as charged. 

7.The defendant has had nine criminal records prior to his current conviction, none of which involved the offence of burglary. 

Mitigation

8.In mitigation, the defence puts forward the following matters for the court’s consideration.

9.The defendant was born on the mainland and is now 45.  He has received education up to Form 2 standard in China. 

10.He lives with his wife, unemployed; his son, 23, also unemployed; and his daughter, 18, who works as a saleslady making a few thousand dollars a month.

11.The defendant used to work as a casual worker on construction sites since he came to Hong Kong, making around $9,000 a month, but has been unemployed since 2009. 

12.He committed these offences for financial gains - to support his family.

13.Counsel for the defendant stresses that the defendant co-operated with the police in the investigation, volunteering the fact that he had committed the offence in Charge 1.  The defence relies on the case of HKSAR v Hui Chi Tong, CACC414/2007, and urges the court to give the defendant an extra discount in sentence on this ground. 

14.Before this court, the defendant pleads guilty to the two charges to affirm his remorse.  He vows to turn over a new leaf.  A job is waiting for him after he serves his sentence in this case. 

Discussion

15.Burglary involves breaking into private property with the intention to steal.  There is a clear public interest in protecting private dwellings from unauthorized invasion.  Once burgled, even when extra anti-theft devices are installed, there will always be a lingering feeling that the home is no longer safe. 

16.When a dwelling place is burgled, there is always a chance of occupants being inside, who may take action to protect their belongings, leading to severe consequences. 

17.The offence of burglary is all too common in Hong Kong.

18.In view of these factors, the Court of Appeal has laid down a sentence guideline of three years’ imprisonment in cases where domestic premises are burgled (HKSAR v Lau Pang [2004] 3 HKLRD 565).

19.The defendant in this instant case has had a total of nine previous records, and must be fully aware of the serious consequences of any fresh offending.  There is no justification not to adopt the guideline sentence.  Nothing in the defendant’s personal and family background would warrant any further discount. 

Conclusion

20.In the result, the court would adopt a starting point of three years for each of the two offences of which the defendant stands convicted, which sentence is reduced by one-third on account of the defendant’s guilty plea to one of two years’ imprisonment each. 

21.There is a respectable argument, in the court’s view, to the effect that the two offences constituted in substance a series of transaction: the defendant had only to break open the iron gate and wooden door once to gain entry to the same building.  On this ground, the court orders that the two sentences should run concurrently.

22.An extra four months’ reduction should be given on account of the fact that the building was vacant, chances of the defendant seeing occupants there at the time of the offences being less, and of the fact that the defendant owned up to the offence in Charge 1.

Order

23.For the two charges of which the defendant is convicted, he is sentenced to a concurrent term of imprisonment of 20 months.