HKSAR v. Wu Man Kit and Another

DCCC1190/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1190 OF 2011

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Reasons for Sentence

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1.The 1st and 2nd defendants have pleaded guilty today to two joint charges of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210.

2.The first burglary took place on 21 July 2011 in Square Street, Central and the second burglary of Charge 2 took place on 19 August 2011 in Kwun Tong Road, Kowloon.  Both these premises were domestic premises.  Both defendants were caught red-handed after the burglary of 19 August. 

3.The only evidence at the time of the arrest against both the 1st and the 2nd defendant for Charge 1 was CCTV footage of them leaving the victim’s building at about the same time.  In addition, there was evidence that they had travelled to Hong Kong together and left together on the day of this burglary, as well as travelling on the Hong Kong MTR together.

4.The defendants admitted to Charge 1 under caution.  Without their admission, a conviction on Charge 1 may have been difficult.  Counsel for the defendants stressed this factor when mitigating on their behalf. 

5.The facts of both of these burglaries are very straightforward.  The defendants had been known to each other for several years and it has been explained to the court that both were experiencing financial difficulties.  Both decided to commit these burglaries in Hong Kong to alleviate their financial burdens and on both dates in July and August last year they travelled to Hong Kong to specifically commit burglaries. 

6.The first burgled domestic premises in Central was burgled during the daylight hours and significant losses were reported. The second burglary in Kwun Tong Road was also, as I have said, a domestic premises but the losses were not as high.

7.Police officers had already put the 1st and 2nd defendants under observation and caught them leaving the building after having burgled the apartment. 

8.The 1st defendant had told the police that they would knock on doors, and if there was no answer, they would break in.  The 1st defendant stated he acted as a lookout whereas the 2nd defendant did the breaking in and entering.  In my view, both roles are equally culpable and I do not distinguish between them for the purposes of sentencing. 

9.I have heard full mitigation on behalf of both defendants as well as their family backgrounds.  The 1st and 2nd defendant are 64 and 39 years old respectively.  The 2nd defendant has young children and a wife to support.  Both have written letters to the court expressing their remorse and foolishness in deciding to make money by victimising private homes. 

10.Both are not men of clear records, but cannot be said to be habitual offenders yet.  The 1st defendant has two previous similar convictions in the years 2001 and 2008.  The 2nd defendant has one previous similar in 2003. 

11.I have been referred to two authorities that deal with the scenario where a voluntary confession leads to a successful prosecution, and without that voluntary confession no charge would likely to have been brought to court.  They are HKSAR v Hui Chi Tong, CACC414/2007, and HKSAR v Tsang Kai On, CACC79/2010.  Both cases can be said to be similar to the facts here. 

12.Defendants, please stand up.

13.I have considered the two authorities produced by defence counsel.  I have considered the usual starting point for a burglary of a domestic premise is 3 years’ imprisonment.  I do not find any aggravating factors exist in this case.  I have also considered the facts, the background of the defendants, mitigation put forward and the losses suffered by the victims.  

14.I will take a starting point for each charge of

3 years’ imprisonment. Both defendants have pleaded guilty and are entitled to a discount of one-third, that is a discount of 12 months. That would mean a sentence of 24 months for each charge.

15.Normally, I would order that 8 months of one charge be served consecutively to the other, making a total of 32 months.  I would do this to reflect the fact there are two burglaries and the totality principle, but in this case here, because of the defendants’ voluntary confession for Charge 1 leading to them being found guilty of Charge 1, I will only make 6 months consecutive and not 8 months, effectively giving the defendants a further discount of 2 months, effectively following the authorities submitted by defence counsel.

16.For the 1st and 2nd defendants, Charge 1, you will be sentenced to 24 months; for Charge 2, both defendants are sentenced to 24 months.  For Charge 1, 6 months of the 24 will run consecutively to Charge 2, the balance concurrent.  That would mean, for each defendant, a total of 30 months’ imprisonment.