HKSAR V Ng Man Hon and Another

DCCC 268/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 268 OF 2012

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REASONS FOR SENTENCE

D1 and D2 are jointly charged with an offence of "Burglary". They both pleaded guilty.

Summary of Facts

2.The building situated at Nos.15-17 Factory Street, Shau Kei Wan ("the Building") was vacant pending urban reconstruction. Electricity supply had been cut off.  There was no lock on the main gate and the gates of the flats inside were not locked either.

3.About 3:50 a.m. on 23 February 2012, police officers including PC 4507 (PW2) were patrolling on Factory Street.  They saw D1 and D2 wandering outside the Building and then entering the premises.

4.The police officers entered the Building and conducted a vertical patrol inside.  About 5:15, PW2 found D1 inside a flat on the 6^th Floor ("the Flat").  D1 was carrying a bag and searching a wardrobe.  PW2 intercepted D1 for enquiry.  Suddenly, D2 rushed out from a room in the Flat and fled.  PC 53585 intercepted D2 at the main gate of the Building.

5.D1's bag was found to contain a pump, 2 rolls of adhesive tapes, a torch, a screwdriver, a padlock and a piece of adhesive tape.  A torch was also found on D2.

6.D1 and D2 now admit that they entered the Flat as trespassers and attempted to steal therein.

Mitigation & Sentence

D1

7.D1 is now 36.  He has 9 conviction records, most of which are drug-related.  D1 has a girlfriend, who has no work; they have a 3-month-old baby.  At the time of the offence, D1 worked as a part-time air-conditioning worker earning about $6,500 per month.  Letters from D1 and his younger sister were handed up; their contents are duly noted.

8.D1's counsel Mr. JIM submitted that D1 is only an opportunistic burglar.  As revealed in the Summary of Facts, anyone could walk into the Building.  Any property found inside would have been left behind by the former occupants and would not be of great value.  Furthermore, no person could have been alarmed or frightened.

9.Mr. JIM submitted 3 cases: HKSAR v CHAU Man Ying CACC 439/2011, HKSAR v LAW Tin Yam CACC 258/2010 and HKSAR v CHEUNG To Ming CACC 406/2005.  In particular, he sought to rely on the decision in CHAU Man Ying, which also involves a burglary committed in a vacant residential building which contained properties not of high value.  In that case, the Court of Appeal set aside the original sentence of 2 years' imprisonment (after trial) and ordered immediate release of the appellant, who had been in custody for a few days over 1 year.

D2

10.D2 is almost 38.  He has 10 conviction records, one of which is "Robbery" (back in 1996).  D2 is separated from his wife; they have no children.  At the time of the offence, D2 worked as a decoration worker earning about $6,000 per month.

11.D2's counsel Mr. SHAM also relies on CHAU Man Ying, submitting that a lower starting point should be adopted. Mr. SHAM stressed that according to the property agent's statement, the Building has been vacant for some 2 years.  Neither the Building nor the flats inside were locked.  No occupants could have been alarmed.

Sentence

12.Based on the decision in CHAU Man Ying, I accept that the instant case is distinguishable from the usual domestic burglaries and, thus warrants a departure from the tariff sentence.  Given the personal background of both defendants and their criminal records, I consider a starting point of 13.5 months' imprisonment to be appropriate for both of them. A one-third discount is given for their guilty pleas, reducing the sentence to 9 months.  Apart from this, I see no mitigating factors which warrant any further discount.  I sentence both D1 and D2 to 9 months' imprisonment.