HKSAR v. So Tat Yan

DCCC711/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 711 OF 2012

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Reasons for Sentence

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1.The defendant has been convicted after trial of one count of burglary.

2.It was a burglary of a domestic premises in the middle of the afternoon on 29 June, but it can be described as not your usual burglary of a domestic premise because it is very obvious from outside of this village house that it was an empty village house.  It was empty of furniture, belongings and inhabitants. 

3.The defendant clearly went in knowing this, but went in to see if there was anything worth taking.

4.From the photographs of Exhibit P2, one can clearly see that there is very little of anything inside, just some material that has probably been left behind by the construction workers.

5.I do not intend to go in the facts.  I have gone through them in full in my verdict.

6.The defendant is a 51-year-old man.  Clearly, he has been a drug addict for some years. 

7.He has nine previous convictions, none for burglary.  This is significant.  He is not a burglar per se.  He has several convictions for theft and his last conviction was for loitering in 2009.

8.His mother is 92 years old and lives with the defendant.  He is the main carer of her, most likely because he is her only single child.

9.Normally, a 3-year term of imprisonment would be a starting point for a domestic burglary where there are no aggravating or mitigating factors.

10.However, I find I can distinguish this case by his facts and I referred myself to HKSAR v Chau Man Ying, CACC439/2011, date of this judgment was 15 May 2012.  This was an appeal of a case in my court of burglary of an empty flat in a building in Sham Shui Po.  That building was entirely vacated, awaiting for redevelopment.  The appellant in that case was an opportunistic burglar.

11.In that case, I took a 2-year starting point instead of a 3-year starting point to reflect this. 

12.The Court of Appeal made the following observations, that the domestic premises was obviously uninhabited, the place obviously had very little items of value to steal, and I quote, the Court of Appeal said,

“We think, with respect, that a sensible exercise of discretion on the facts of this particular case would have resulted in a prosecution in the magistrate’s court; and we are satisfied that a materially lower sentence was warranted.”

13.The Court of Appeal set aside that 2-year sentence and, as the defendant had been in custody for a year, he was released immediately.

14.I bear in mind this sensible approach taken by the Court of Appeal and I am of the view that this defendant is more an opportunistic thief as opposed to a burglar, even though I found in this case he did climb through a window.

15.I distinguish this case from the normal case where a 3-year term of imprisonment would be appropriate.

16.Defendant, please stand up.

17.After considering all of the above, I impose a sentence to this charge of 9 months’ imprisonment.

COURT: Do you understand that sentence?

A. Yes, I do.