HKSAR v. Yau Chun Wai
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DCCC 715/2013 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 715 OF 2013 ----------------------
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--------------------- Reasons for Sentence --------------------- 1.Defendant, you have pleaded guilty to an offence of attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, and section 159G of the Crimes Ordinance. You have admitted that on 27 May 2013, you attempted to enter as a trespasser a house at Phase 2, Le Bleu, No 12 Tung Chung Waterfront Road, Lantau Island with intent to steal therein. 2.On that day, at about 2.30 pm, the domestic helper, who was working at the house, heard the dog barking at the back yard. Through the glass doors she saw you climbing over the fence into the back yard of the premises. The fence, which surrounded the house, was approximately 1.6 metres in height. When she saw you, you were about 10 metres away from her and holding a mobile phone in your hand. 3.You stood in the back yard and she observed you for about two minutes. As soon as she walked out into the back yard, you fled. When she checked the premises, she found that nothing was missing. 4.A short time later, a security guard working at the post at the main entrance of the estate saw you walking from the inside of the estate’s main entrance. He inquired from you what you were doing. You told him that you were looking for a person who lived at house No 22 surnamed Ho. He knew that there was nobody living there by the name of Ho, and thus reported this case to the police. 5.Whilst waiting for the police to arrive, you went next to a rubbish bin and extended your hand into the rubbish bin, then sat beside the bin. 6.Shortly afterwards, at about 3.08 pm, the police arrived. When they searched the rubbish bin, they found a screwdriver and a pair of gloves beside the bin. 7.A CCTV recording of the estate captured someone climbing into the estate in the afternoon at about 2.30 pm and later captured you exiting from the entrance between the premises and the adjacent house and walking to the main entrance of the estate. 8.The helper identified you as the person who climbed over the fence and entered the back yard in an identification parade held on 3 June 2013. 9.Upon forensic examination, the blood stain inside the gloves matched your DNA. 10.In a video-recorded interview, you said that you resided at a park in Sham Shui Po and did not have any fixed address. You are aged 38 and have a total of 34 convictions arising out of 18 court appearances. Six of those convictions are for burglary. Two of those are for a similar offence of attempted burglary, making a total of eight similar charges of burglary. 13 are for theft and five for attempted theft, making a total of 18 for theft, of which those 18 thefts plus the eight burglaries make a total of 26 convictions related to dishonesty. 11.Mr Anthony Tse, your counsel, has mitigated fully and thoroughly on your behalf. He has informed the court that you were unable to find a job and were under financial stress. You had only received public assistance of $1,900 a month, and as a result, you committed this offence. He rightly points out that your strongest mitigating factor is your plea of guilty. He has asked this court to take a lower starting point than that of the usual tariff of 3 years’ imprisonment as you only entered the back yard of the premises and not actually into the house itself. 12.I see no reason for me to take a lower starting point. I have seen the photographs. The photographs show that this was a gated estate, and certainly an upmarket, luxurious estate, with modern, with large houses. You lived in Sham Shui Po, yet you went all the way out to Tung Chung, in Lantau. This was premeditated. You had intended to commit a burglary on these expensive premises, hoping obviously to be able to steal goods of high value. You were however prevented from entering the house as you were caught in the act. 13.You have numerous previous convictions. You have an appalling record. 14.On that basis, not only should the starting point be one of 3 years, but the starting point should in those circumstances be enhanced becasue the previous sentences have had no deterrence upon you at all and the society needs to be protected from people like yourself. 15.Defendant, had I convicted you after trial, I would have taken a starting point of 3 years’ imprisonment. That is, 36 months. That sentence should be enhanced as a result of your previous appalling criminal record by a further 3 months, making a starting point of 39 months’ imprisonment. 16.Given your plea of guilty, you deserve the full one‑third discount credit, and in those circumstances, the sentence will be reduced to 26 months’ imprisonment, to which you shall be so sentenced.
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