HKSAR v. Lau Wai Lun and Another
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DCCC 477/2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 477 OF 2013 ----------------------
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--------------------- Reasons for Sentence --------------------- Overview 1.D1 and D2 are jointly charged with one count of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210. Both of them have pleaded guilty to the charge. 2.The offence took place at the staircase of a private residential building. The facts 3.Wai Lee Building is located at 997 King’s Road, North Point, which is a residential building with 23 storeys, (“the Building”). At about 0345 hours on 19 April 2013, the security guard of the Building found D2 tampering with the electric metre and electric wires at the staircase on the 16th floor. The security guard then asked him what he was doing. D2 replied that he was looking for someone and then walked down the staircase. On 15th floor, D2 walked to another staircase and yelled to someone. At that juncture, D1 appeared. Both of them ran down the staircase. D1 and D2 were eventually intercepted by security guards and residents on the ground floor of the Building. A report was made to the police. 4.At about 0355 hours, police arrived at the scene. Upon search, a bundle of electric wires and a pair of pliers were found inside D1’s backpack. Under caution, D1 admitted that they were not residents of the Building and they were cutting the electric wires serving as “earth cable” at the staircases between 2nd and 16th floor. In subsequent interviews, D1 further admitted that he committed the offence because he did not have money for meals; the bundle of electric wires found on him were cut from the Building and he intended to sell to a recycle shop. Under caution, D2 admitted that he was in the Building waiting for D1. 5.According to an investigation by the police and Electrical and Mechanical Services Department, it was confirmed that the “earth cable” between 2nd and 16th floor were missing. The “earth cable” is a protective conductor. The removal of the “earth cable” will not affect the normal power supply. However in the case of electric current leakage, the “earth cable” provides a path of low resistance for the electric current to dissipate. It also reduces the chance of electric shock and electrocution to the residents. The costs of repair for the Building was $30,000. Mitigation D1 6.D1 is now 35 years of age, divorced. He was educated up to Form 3. He resides in a rented cubicle living apart from his parents and siblings. Prior to this offence, he was unemployed but he used to work as a cleaner earning about $6,500 each month. I am told that he is currently on medication for schizophrenia. It is submitted that he committed the offence due to financial difficulties. He has 11 criminal convictions, 8 of which are dishonesty-related offences. His last conviction of theft was in January this year and he was released from prison in February, ie two months prior to the present offence. D2 7.D2 is aged 34, a married man. He was born in China and educated up to Form 2. He came to settle in Hong Kong at the age of 15. His wife and his son, now aged 3, are both residing in Pun Yu China. He previously worked as a decoration worker earning about 6,000 each month. He is now receiving CSSA of 3,300 each month. He is the sole financial support of his family. His father is in court today who is in support of D2. He has 13 previous criminal convictions, 9 of which are related to dishonesty. In mitigation, it is suggested that he committed the offence because of the financial pressure. The value of the stolen wires, if sold, is no more than $200. The content of the mitigation letter written by D2 is duly noted. Sentence 8.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. 9.In her submission, Ms Chan on behalf of D1 suggested that the conventional starting point for domestic burglary does not apply. She prayed in aid of the Court of Appeal decision in HKSAR v Li Kin Keung CACC7/2012. It is submitted that the facts in that case were strikingly similar to that in the present case. In Li Kin Keung, the application was convicted on his own plea for 13 counts of theft. The facts disclosed that the applicant stole earth electric wires from two public housing estate buildings. He was sentenced to a total of 25 months. In that case, an application for enhancement of sentence was made and allowed under section 27(11) of OSCO. 10.In my view, that case is clearly distinguishable from the nature of the charges involved. The gravamen of an offence of burglary relies upon the fact that the stealing occurred when an offender entered into the premises, whether or not it is of domestic in nature, as a trespasser. At law, that is not an element of an offence of theft. 11.In her submission, having referred me specifically to paragraph 33 of the Judgment, Ms Chan submitted that the Court of Appeal pointed out that potential harm arising from the removal of the earth wires had been properly reflected in the sentence imposed in that case. However, the issue of potential harm was considered in the context of an application to enhance the sentence under OSCO. The issue called for determination was the basis of prevalence of the offence. In that context, the Court of Appeal concluded that the immediate risk affecting public safety did not exist. There is no such application in the present case. 12.I am, however, of the view that the potential harm that might cause is an aggravating feature that I am entitled to take into account. I cannot lose sight of the consequence of removing the “earth cable” of the Building. In the event of electric current leakage, the absence of the “earth cable” might cause serious, if not fatal, harm to all the residents of the Building. 13.In mitigation, it was suggested by D2 that there was “open access” to the building and they were mere opportunists. In this case, I accept that there is no evidence of forcible entry and the offence took place at the staircase, a common area of the Building. However, whether this case should be regarded as a “walk-in” burglary or “sneak theft” case. 14.In HKSAR v Sim Ka Wing CACC450/2000, the Court of Appeal states that:-
15.Having carefully considered all the circumstances, I reject that they were mere opportunists. In the present case, they, acting in concert, carried with tools, ie pliers, and targeted specifically at the “earth cable” of the Building. Also, the offence took place in the early hours of the morning. These features indicate that there must be a degree of premeditation, though it may not be sophisticated. 16.Having considered everything urged upon me in mitigation, submissions and all the circumstances, I adopt a starting point of 3 years’ imprisonment. To reflect their guilty pleas, the sentence is reduced to 2 years. Apart from that, I see no other mitigating factors which warrant any further discount. Conclusion 17.In the result, D1 and D2 are sentenced to 2 years respectively.
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