HKSAR v. Yeung Kwai Wa

DCCC122/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 122 OF 2012

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Reasons for Sentence

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The charge

1.The defendant pleaded guilty to a count of burglary under section 11(1)(a) and (4) of the Theft Ordinance, Cap.210.

The facts

2.The facts of the case can be summarized as follows.

3.PW2 was the owner and occupant of Flat 1, 27th Floor, Block C, North Point Centre, Nos. 278-288 King’s Road, North Point and the rooftop.  She had installed an iron door grille near the staircase leading to the rooftop.  The grille was locked and the key to it was solely held by PW2. Wire fencing was also put up to secure the rooftop.  Within the secured area, there was an enclosed storeroom (hereinafter referred to as “the storeroom”) with no lock affixed.

4.At 10.45 pm on 11 December 2011, PW1, an occupant of a flat at the adjacent building at Block A went to its rooftop and saw the defendant standing near the satellite dish on PW2’s rooftop and looking around.

5.About one and three-quarter hours later, PW1 returned and saw the defendant coming in and out of the storeroom.  As the defendant did not look like a resident of the building, PW1 called the police.

6.Police arrived shortly and saw the defendant standing near the door of the storeroom.  He was noticed to have thrown a pair of gloves onto the ground.  PC1962 revealed his identity and asked the defendant whether he lived there.  The defendant did not reply.  $75.40 in cash and three mobile phones were found on the defendant. 

7.The defendant was arrested for attempted burglary.  Under caution, the defendant admitted that he was not the owner of the storeroom and he did not have the owner’s consent to enter the same.  But he denied the offence and ownership of the gloves and stated that he was just looking around the place.  Further, he claimed that the three mobile phones found on him were his.

8.Meanwhile, PW2 assisted the police to gain access to the roof by using a key to open the iron door grille leading to the rooftop. However, there was no sign of ransacking inside the storeroom nor that of property stolen.  PW2 confirmed that the gloves were not hers. 

The defendant’s background and mitigation

9.The defendant, aged 38, was working in a barber shop at the time of the offence.  He married a mainlander a year ago but was living with his aged mother and four other siblings at Ma On Shan. 

10.Of his nine previous convictions, four were dishonesty-related.  His last conviction was in July 2009 whereby he was sentenced to a 2 weeks’ imprisonment for a theft charge.  He has nothing similar in the past and was the first time being convicted in the District Court. 

11.The defence counsel submitted and it is accepted by the court that there was no evidence to suggest the following:

(1) that equipment or force was used to facilitate the commission of the offence;

(2) that the owner had suffered loss nor was there any property stolen;

(3) that there were other accomplices involved; and

(4) that alarm was caused to any occupant of the subject premises.

12.It is noted that the offence was committed during midnight and in the early hours in the morning. 

Sentencing guidelines

13.It is undisputed that the subject premises should be considered as a domestic premises albeit a storeroom at the rooftop of a residential building.

14.The Court of Appeal in Chan Yui Man CACC36/1988 laid down general guidelines of sentence for domestic burglary.  It was held that 3 years was the proper starting point for a first offender of full age in domestic burglary. 

Sentence

15.Having fully considered the background of the case and that of the defendant, the mitigation advanced by the defence counsel and the sentencing guidelines laid down by the Court of Appeal, this court will adopt a starting point of 3 years’ imprisonment. 

16.Apart from the usual one-third discount given for the defendant’s guilty plea, there were no other circumstances which would justify any further reduction in sentence.  This court now imposes a two years’ imprisonment.