HKSAR v. Ma Wai Lun

DCCC1329/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1329 OF 2011

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Reasons for Sentence

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1.The defendant has pleaded guilty to one offence of burglary and has agreed the facts and been convicted.

2.The facts that the defendant agreed show that the offence was committed on the rooftop of 213 Apliu Street in Sham Shui Po in the morning of 11 November 2011.  This rooftop is a location where an elderly man Mr Lee resides and it is the 6th floor of that building. 

3.On the day in question at 8.55 in the morning, a sound was heard on the rooftop and the defendant was seen there.  He was squatting down and moving some bricks.  When the police arrived, the defendant was seen holding a roll of metal plate, which he dropped to the floor.  The defendant said that he lived nearby and had climbed over the rooftop and the iron fence onto the rooftop of this building. 

4.Eventually, the defendant was interviewed under caution, and at that time he admitted that he had climbed over to the rooftop from a rooftop of No.209 Apliu Street.  He saw some iron plates and bricks.  He intended to resell the iron plate, if possible, and keep the bricks if he found them useful. 

5.The defendant’s antecedents shows that he is a 39-year-old man.  He has four previous convictions, dating from 2005 to 2009, all of them for managing a vice establishment, ranging of sentences of between 4 and 6 months.  The defendant of course has no similar conviction.  He was unemployed at the time of his arrest and had been since May 2001. 

6.I am told that he is not a drug addict.  He was receiving comprehensive social security assistance, valued at $1,800 per month.

7.In mitigation, I am told the defendant is single.  He has a mother aged 57 years and an elder sister aged 40.  He lived alone on the 1st floor of 205 Apliu Street and had gone onto the rooftop that morning as is established in the facts.

8.In mitigation, it is said no force was used to break into this domestic premises; the defendant made a full admission shortly after at the police station; he has no similar convictions; and the time of day when the burglary occurred was in the morning, not late at night. 

9.I take into account all these factors. 

10.The defendant has committed a burglary in a domestic premises and the starting point for burglary in a domestic premises for a person with a clear record is normally 3 years’ imprisonment.  The defendant has admitted all the relevant facts. 

11.Perhaps of some relevance in this case is the defendant was committing the burglary in the morning and was committing a kind of what I describe as a scavenging burglary.  The items that he took were of very low value, almost scrap value really.  So he was not looking for or taking high value items when he was found by the police.    

12.The defendant had also on the face of it not used any tools to break into the premises and had access that was simply over a fence.  But he has of course committed a burglary by stealing in this way. 

13.I consider that taking all these factors into consideration, the appropriate starting point lies somewhere between the burglary of commercial premises and of domestic premises and I will take a starting point for this particular burglary of 33 months’ imprisonment.  The defendant is entitled to a full one-third discount from that, which leads to a final sentence of 22 months’ imprisonment.