HKSAR V Tse Man Cheung and Another

DCCC 192/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 192 OF 2013

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Reasons for Sentence

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Overview

1.D1 and D2 are jointly charged with two offences of burglary (Charge 1 and 3) and D1 also faces a single charge of burglary (Charge 2).  Both of them have pleaded guilty to their respective charges.

2.All charges to which both defendants have pleaded concerned burglaries of domestic premises under renovation in public housing estates.

THE FACTS

Charge 1

3.On 21 August 2012, the decoration contractor of Room 2822, Heng Yat House, Heng On Estate, Ma On Shan N.T. reported that the flat was burgled and renovation tools namely a combination lock, two electric guns, four grinders, a horizontal magnetometer, an oil hydraulic drill, seven rolls of electric wires, five copper pipes, two electric screwdrivers and a bag were stolen.  The total value of the stolen properties was HK$15,000.

4.At about 0028 hours on 28 August 2012, D1 was stopped by patrolling officers when he was found acting suspiciously in the vicinity of Heng Shan House.  He then fled but was eventually subdued.  Upon search, four screwdrivers and three pliers were found on him who upon enquiry admitted that they were intended to be used for prizing locks.  Under caution and in subsequent video-recorded interviews, he admitted Charge 1 and volunteered information about D2’s involvement in the commission of the offence.

5.On 30 August 2012, D2 was arrested and under caution he admitted the offence.

Charge 2

6.On 12 November 2012, the decoration worker responsible for the renovation works of Room 3003, Yiu Chung House, Yiu On Estate, Ma On Shan, N.T. found that three electric drills, two electric guns, a grinder and four rolls of electric wires were being stolen from the premises.  The total value of those items was HK$8,100.

Charge 3

7.At about 0250 hours on 2 January 2013, when an off-duty police officer returned to his residence at Yiu Ping House of Yiu On Estate, he found that D1 and D2 entered into the building by following him without using resident cards.  Being aware of some burglary cases recently occurred in the estate, he reported the case.  At about 0313 hours, police officers found D2 standing outside Room 1309, a flat which was under renovation with scaffolding erected outside.  Upon seeing the police officers, D2 fled into the staircase immediately but was later intercepted.  Inside Room 1309, D1 was found carrying a rucksack in which there was a bag containing a pair of gloves, a torch and the subject matter of Charge 3, ie a magnetometer, a milling machine and a padlock.  D1 and D2 were then arrested.  The total value of the subject matter was HK$1,920.

8.In a cautioned video-recorded interview, D1 admitted Charge 3 whilst in a subsequent interview he also confessed to be the culprit involved in Charge 2.

Mitigation

D1

9.D1 is now 23 years of age, single.  He was educated up to Form 2.  He resides with his father and stepmother who are both living on public assistance.  Prior to his arrest, he worked as decoration worker earning about HK$9,000 each month and would contribute HK$2,000 to financially support his family.

10.He has three criminal records, two of which are blackmail and theft[1]. He committed those two offences when he was at the age of 15 and was put on probation.  In mitigation, a letter in Chinese was submitted in which D1 states that he is now very remorseful and is deeply affected by the support from his father.

11.It is submitted on behalf of D1 that the offences were not premeditated and the opportunities arose when he found the doors of the premises in question were not properly locked.  In other words, he was a mere opportunist.

D2

12.D2 aged 25 has a clear record.  He was educated up to Form 3.  He used to work as a casual salesman earning about HK$7,000 each month but has been unemployed since 2010.  He lives in a public housing unit with his senile grandmother, parents and elder brother.  In a letter written by him, D2 states that he feels very sorry for his wrongdoings and wishes to continue to take care of his grandmother.

13.In his written and oral submissions, Mr. Chan, solicitor for D2, urges the court to adopt the conventional starting point of 2½ years for non-domestic burglary and prays in aid of the decision in HKSAR v Yeung Kwok-sang CACC4/2006 and two District Court Cases DCCC 987/2010 and DCCC 326/2011.  In Yeung’s case, the burglary occurred in a domestic premises under renovation but the sentencing judge treated the case as a non-domestic burglary on the reason that “the premises and those in the neighbourhood were not occupied as residence.”  In the result, the starting point of non-domestic burglary was adopted.

14.In mitigation, it is also stressed that D2 was “probably” playing a “supportive role” in the commission of the offences.

Sentence

15.For burglary of domestic premises, the usual starting point is one of 3 years’ imprisonment for a first offender of full age without aggravating or mitigating features.  The starting point can however be adjusted upwards if there are aggravating circumstances.[2]

16.Having considered all the circumstances, I find that the facts of the present case are clearly distinguishable from that in Yeung’s case and two other cases as cited.  The flats that were being burgled are residential units in public housing estates.  It is wholly unthinkable that the flats in question and those in the neighbourhood are not occupied as residence.  The gravamen of domestic burglary cases lies in the fact that occupants or residents of the victimized premises might be put to fear.  The nature of the case should not be judged by simply looking at whether there was occupant present at the time of the offence.  In the present case, it is only fortuitous that the occupants in question might have been moved out during renovation.  Thus, in my view, it is beyond argument that this case must be regarded as domestic burglaries.

17.As to whether they were opportunistic burglars, D1 claimed under caution that the doors and metal gates were not properly locked.  However, the facts to which he admitted reveal that the decoration contractor and worker in Charge 1 and 3 confirmed that they had secured them with padlocks before they left the premises.  Furthermore at the time of the arrest of D1 on 28 August 2012, he was found on him with screwdrivers and pliers which were admittedly intended to be used for prizing locks.  In the circumstances, the offences, in my view, must be premeditated, though may not be sophisticated.

18.As for Charge 1 and 3, the fact that the padlocks were being removed clearly indicates forcible entry at the commission of the offences.  This however does not apply to Charge 2 where the key was left by the decoration worker on top of the metal grille before the incident.

19.Insofar as their roles are concerned, it was a joint enterprise in which both defendants participated in the commission of the offences, albeit D2 was a “lookout” or helper who only received a few hundred dollars as reward.  I do not find that there should be any distinction in terms of culpability.

20.Nevertheless even though Charge 3 is a joint charge committed by them whilst on police bail, that was in fact the 3^rd offence committed by D1 whilst it was the 2^nd one of D2.  If a common starting point is adopted, it would be unjust to D2 who might feel aggrieved.

21.In HKSAR v Yuen Gang Shing CACC 303/1997, the applicant complained of the apparent difference in the starting point adopted by the judge for his sentencing and that adopted for his co-defendant in the same trafficking offence.  The Court of Appeal, in dismissing the appeal against sentence, stated that the sentencing judge was entitled to take into account the aggravating factor, ie committing offence whilst on bail, which was only applicable to the applicant when deciding the appropriate starting point.

22.In the premises, I would therefore adopt different starting points in respect of D1 and D2 for Charge 3.

23.In the present case, the defendants who were acting in concert preyed on premises that were under renovation.  Apparently they envisaged that those premises were probably vacant during the period of renovation and the degree of security was much lower than usual residential flats with occupants.

24.As for the loss suffered by the victims in Charge 1 and 2, the amount involved is not insignificant and all stolen tools were being sold.  As for Charge 3, D1 and D2 were caught red-handed in the small hours of the morning. There is no actual loss suffered by the victim but it is fortuitous and credit should be given to the watchfulness of the off-duty officer PC 8458.

25.Furthermore both of them committed similar and further offences whilst on police bail over about 4 months’ time.  This is undoubtedly an aggravating feature.

STARTING POINTS

26.Having considered all the circumstances and everything urged upon me in mitigation, I adopt a starting point of 3 years imprisonment for Charge 1 and 3 years and 3 months for Charge 2.  As for Charge 3, the starting point for D1 is 3 years and 6 months, and for D2 is 3 years and 3 months.

Confessions

27.As properly conceded by Mr. Lee for the prosecution, there is no direct and forensic evidence to implicate the defendants and to secure convictions but for their voluntary confessions in respect of Charge 1 and 2.

28.In HKSAR v Hui Chi Tong CACC 414/2007, the Court of Appeal recapitulated that “Such voluntary admission, coupled with a plea later, showed genuine remorse.  It is in the public interest to encourage an offender to “own-up” to his misdeed and to face the consequence.  The most effective way of giving encouragement is to give a greater than normal discount upon a plea.”[3]

29.In the circumstances, I consider that their voluntary confessions shall attract a further discount of 4 months in the respective sentences.

30.Having considered all the circumstances and everything urged upon me in mitigation, I see no other mitigating factor which warrant any further discount.

Totality

31.These burglaries were separate and distinct offences committed in different locations and on different dates.  They were well planned and committed whilst on police bail.  The totality principle is however of utmost importance in sentencing cases of multiple counts of burglary.[4]

32.Giving full one-third discount for his guilty plea and the further discount for voluntary confessions in respect of Charge 1 and 2, D1 is sentenced to 20 months for Charge 1, 22 months for Charge 2 and 28 months for Charge 3.  As for totality, I order 3 months of each Charge 1 and 2 be run consecutively to Charge 3.  D1 is therefore sentenced to a total of 34 months’ imprisonment, reflecting a notional starting point of 4 years and 3 months for all three offences.

33.D2 is sentenced to 20 months for Charge 1 and 26 months for Charge 3. As for totality, I order 3 months of Charge 1 be run consecutively to Charge 3.  D2 has to serve a total of 29 months’ imprisonment, reflecting a global starting point of about 3 years and 7 months’ imprisonment.

Conclusion

34.In the result, D1 is sentenced to 34 months’ imprisonment and D2 is sentenced to 29 months.