HKSAR v. Tong Chiu Chuen and Others

DCCC 732/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 732 OF 2013

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Reasons for Sentence

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1.D1 and D2, you have pleaded guilty to an offence of burglary; and D3, you have pleaded guilty to an offence of handling stolen goods which was the property stolen from the burglary.

2.D1 and D2 on 1 May 2013, which was a public holiday, you both burgled a house at Villa Pinada in Tuen Mun.  That day, the family members and the domestic helper of the house were out of the house.  Sometime between 5.45 pm and 9.45 pm that day, D1, you entered the premises and stole valuables which were listed in the charge.  At that time, D2, you were waiting in the car for him whilst he was burgling the premises.  You had both gone there to Tuen Mun, looking for premises to burgle. 

3.The valuables stolen were gold ornaments, jewellery and some notes valued at a total of about $3.6 million.  You had stolen a safe which was about 65 kilograms in weight and measuring 2 to 1.5 feet in size from the premises which contained valuables of about $3.5 million.

4.How were you all caught?  By very good detective police work.  The police saw the three of you the following morning on 2 May having a meal in Mongkok.  They then decided to follow you.  They had seen you purchase some tools from a hardware store and also a large bamboo basket from a shop.  They saw you board a private vehicle driven by the 2nd defendant.  They followed you to Tuen Mun.  Eventually, they saw you in a village in Tuen Mun.

5.At about 3.30 pm that day, they saw the three of you hauling the safe that was stolen from the premises the day before into the vehicle.  You were then intercepted.  At the time of your arrest, D1, you were wearing a bright-coloured workman’s vest and a safety helmet. You were dressed under the guise of a construction worker.  This was so that you would avoid arousing suspicions by others.  Meanwhile, the car was searched and a large quantity of tools, including pliers, banners, screwdrivers, hammers were found.  In addition, safety helmets and bright-coloured workman vests were also found in the vehicle.

6.The owner of the safe was located. It was opened in her presence.  It was confirmed that her valuables of about $3.5 million were still inside the safe and were intact.  It was, however, also confirmed that around $100,000 worth of gold ornaments and jewelleries that were also stolen from the premises were still missing and failed to be recovered.

7.I am informed by the prosecution that the safe could not be opened as the lock had been broken.  So a locksmith had to be employed by the police to cut open the safe as can be seen in the photographs.

8.You all admitted these offences under caution. D1, you said that you lost money during horse betting on 1 May, and thus you telephoned D2 and asked him to commit burglary with you in order to make some money.  You then travelled around Tuen Mun looking for premises to burgle.  You had stolen the safe and had moved the safe by wrapping a bed sheet around the safe to haul it out of the premises.  However as the safe was too heavy for you to carry, you left it nearby the premises in some bushes nearby.  You then left the scene with D2. 

9.That evening, you telephoned D3 and requested his assistance to help convey the safe.

10.In the afternoon on the following day, all three of you then went back to Tuen Mun to pick up the safe from the bushes.  You tried to open the safe at the scene but to no avail.  You therefore placed the safe inside the bamboo basket and hauled it back to the vehicle.  You were arrested soon after you boarded the vehicle.  D1 your intention was to share the contents inside the safe with D2 and to treat D3 for a meal.

11.D2, under caution, you said you agreed to go to burgle premises with D1.  You waited in the car while D1 went to burgle.  You knew that D1 stole a safe and it was too heavy to carry.  You then decided to leave the safe in Tuen Mun and returned the next day to pick it up.  You used a metal saw to try and break open the safe but to no avail.

12.As for D3, you admitted that D1 had telephoned you to ask your assistance in moving something.  He promised you a reward but did not actually mention any definite amount.  You then met D1 in Mongkok and you, D1 and D2 then went in the vehicle to Tuen Mun and picked up the safe wrapped in a bed sheet from the bushes and dragged it back to the vehicle. 

13.D1 to D3, your solicitor, Mr Lee, has made full mitigation on your behalf and I have taken into account all that he has had to say. 

14.I will deal first with the background of D1. D1, you are 51 years of age, single and living in Hong Kong.  You have been to court on five occasions and of which you have 10 previous convictions. All of them are for dishonesty.  You have one similar offence for burglary which you committed in February 2010.  You were last released from prison in January 2011.  Your other offences were mostly of robbery to which you were sentenced to fairly long periods of imprisonment between 6 and 8 years.

15.Mr Lee has mitigated that you were in financial difficulty as you lost a lot of money, and therefore you decided to go and commit this burglary. You had invited D2 and D3 to participate in your illegal activities. 

16.As for D2, you are 47 years of age and have been to court on 15 occasions of which you have 27 previous convictions.  15 of those are for dishonesty related offences.  You have two similar offences for burglary: one, however, when you were a youngster in 1981 and you were sentenced to detention centre. The other is your last conviction in 2008 which you were sentenced to 2 years’ imprisonment.  You have also been sentenced to fairly lengthy periods of imprisonment for the offences of robbery.  Those sentences ranged between 4 and 7 years’ imprisonment.

17.As for D3, you are aged 55 and you are married. You have been to court on 12 occasions to which you have 17 previous convictions.  13 of those convictions are for dishonesty related offences.  You have one similar for handling stolen goods but have eight other convictions for burglary, two for robbery and other dishonest offences.

18.Mr Lee has submitted that of the property that was stolen, most of the property was recovered.  The whole safe with the valuables intact was recovered, hence this is a strong mitigating factor. 

19.I accept that the goods were recovered but I do not accept this to be a mitigating factor.  It was very fortunate the police managed to find you and observed that you were moving the safe.  The $100,000-odd worth of valuables were never recovered.  I do not accept the mitigation advanced by D1, that on D1’s way out from the premises, he lost the property stolen and thus for that reason the property could not be found.  

20.As Mr Lee rightly points out, for the offence of burglary of domestic premises, the usual starting point after trial is one of 3 years’ imprisonment.  There is no guideline or tariff for the offence of handling stolen goods the maximum term of imprisonment is the same as that for burglary.  Handlers are however often treated as very much more serious offenders usually than burglars. 

21.The factor applicable to all three of you is your appalling past criminal records.  That is particularly in respect to dishonest offences.  This is an aggravating factor to be taken into consideration.

22.Another aggravating factor to be taken into consideration is the high value of the stolen property.  It matters not that you did not know what was in the safe.  The value of the property was very high, at some $3.5 million in the safe alone.  Another $100,000 worth of property was unrecoverable.  This is also an aggravating factor which the court takes into account in sentencing.

23.Defendants, for D1 and D2, for the charge of burglary of domestic premises, the usual starting point is one of 3 years’ imprisonment or 36 months’ imprisonment.  In view of your past appalling criminal records for dishonesty and the high value of goods, I shall enhance that sentence to one of 42 months’ imprisonment.  It must be noted here that I am not enhancing the sentence as a result of your records but on the fact that the past sentences seem to have no effect and the public should be protected from people like yourselves. 

24.Giving your strongest mitigating factor is your plea of guilty, you shall be granted the usual one-third discount and that term shall be reduced to one of 28 months’ imprisonment or 2 years and 4 months’ imprisonment to which you shall both serve. 

25.For D3, I take the same starting point for your handling of the stolen goods of 3 years’ imprisonment and enhance that sentence for the same reasons, to 42 months’ imprisonment, giving you full credit for your plea of guilty, reduce that term to one of 2 years and 4 months’ imprisonment to which you shall serve.

Please refer to CACC401/2013 for the relevant appeal(s) to the Court of Appeal.