HKSAR v. Cheng Shui Yau

DCCC 517/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 517 OF 2013

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of burglary of the meter room situated on the 9th Floor of the Kwun Tong Lap Shing Building at Nos. 305-325A Ngau Tau Kok Road, Kwun Tong, contrary to section 11 of the Theft Ordinance, Chapter 210.

2.The meter room was also used as a storeroom by the Owners’ Incorporation for renovation materials.  Just after midnight on 31 March this year the security guard of the building saw the defendant, who was a carrying a black shoulder bag, leave the meter room via the metal gate which had earlier been secured by a padlock.  The defendant closed the gate and covered the padlock with a white towel.

3.The security guard asked the defendant what he was doing to which the defendant replied his boss had asked him to collect something.  When asked to produce his work permit or staff card the defendant pretended to search for something at which time the security guard removed the towel and discovered the padlock had been broken.  The defendant suddenly fled downstairs.  The security guard took the lift and on reaching the ground floor saw the defendant crossing the road opposite the building.  The security guard was able to intercept the defendant and call the police. 

4.The police arrived and searched the defendant.  Inside the defendant’s shoulder bag the police found a yellow pair of pliers and a brand new fire hydrant valve.  The defendant told the police he was collecting the fire hydrant valve for his boss “Ap Kee” and supplied the telephone number of “Ap Kee”.  The police contacted “Ap Kee” who said he did not ask the defendant to collect the fire hydrant valve and that he had no renovation work going on at the building. 

5.PC 9602 then arrested the defendant.  Under caution the defendant said he was in need of money because he had not been paid his salary.  Noticing the padlock was already broken when he went up to the 9th floor the defendant opened the gate to see if there was anything inside he could take and sell.  The defendant only took the fire hydrant valve.  This has been confirmed to have been stored in the meter room and was valued at about HK$1,010.  The defendant said the pliers belonged to him. 

6.Under subsequent video interview the defendant repeated the same account that he only took the fire hydrant valve and further explained that he first went to the 8th floor of the building because he had seen there were rooms for lease but on reaching the 8th floor he found no one at the rooms leasing company.

7.In passing sentence I have carefully considered everything said on behalf of the defendant by Mr Cheung.  I take into account the defendant has no previous convictions for burglary and that his last conviction was in 2002. 

8.Mr Cheung submits the defendant acted out of momentary greed.  I reject the defendant went to the building to look for premises to lease.  This was midnight when everything would be closed.  Further the defendant had with him a pair of pliers which I am satisfied could easily have been used to break into premises and may well have been used to break the padlock, which was still intact at 9.30 p.m.  I reject this was an opportunistic burglary.  Even if the defendant was not the one who broke the padlock I am satisfied he went to the building to look for something to steal.

9.Although the meter room was in a mixed residential and commercial building having looked at the photographs I am satisfied the meter room is properly classified as non-domestic premises.  The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months imprisonment (see Attorney General v Lui Kam Chi [1993] 1 HKC 215).  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 1 year and 8 months imprisonment.