HKSAR v. Yu Wai Tung

DCCC 857/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 857 OF 2013

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Reasons for Sentence

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1.Defendant, you have pleaded guilty to two charges of burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance.

2.You have admitted that on 9 June 2013 you burgled, in Charge 1, Room 1707 of Kwai Oi House, Kwai Fong Estate, and in Charge 2 its neighbouring unit of Room 1708.

3.On the day in question, in respect of the 1st charge of Room 1707, the elderly occupant had left the premises, closed the door and iron gate, and turned off the lights before leaving at about 12 noon.  Shortly after 2 pm a person who was sitting outside Room 1702 saw you in the corridor.  He saw you fiddling with the gate of Room 1707.  After you had opened the iron gate, you continued to fiddle with the lock on the wooden door and then opened the door.  Feeling suspicious, he went inside his own room to take a camera, and went to Room 1707.  However, by that time the wooden door and iron gate were closed.

4.In respect of the burglary of the premises at Room 1708 nearby, the occupant was taking a shower inside the flat when he heard someone pressing the doorbell for a number of times.  He went out and looked through the door view, but found no one outside.  He then went back to the bathroom.  After a while, he heard some noises of his door being opened.  He then went out of his bathroom again, and saw you at the door.  Immediately upon seeing him, you fled.  Nothing was stolen from his premises.

5.These cases were reported to the police.  On the following day the police saw you at Kwai Ching East Estate acting suspiciously.  They stopped you.  They found in your possession a face mask wrapped inside a newspaper and two plastic cards.

6.The occupant of Charge 2 identified you in an identification parade as the male who entered his house on 9 June.  The neighbour who saw you fiddling with the door of Room 1707 was unable to identify you in the identification parade, but was able to identify you from the CCTV video recorded footage.  At that time you were wearing a mask.

7.Further forensic examination found that your slippers found at your house matched the footprint at the door of Room 1707.

8.Nothing was stolen from Room 1707.

9.Defendant, Mr Sanny Kwong has mitigated fully and thoroughly on your behalf.  I have taken into account all that he has had to say together with the matters that you have stated in your letter to me.  You are 50 years old.  On 12 previous occasions you have appeared in court you have amassed some 21 previous convictions.  Of those convictions, 10 of them are for similar offences of burglary.  Five of those 10 charges are for attempted burglary.  You have one previous offence for theft.  All in all, you have 11 previous convictions for dishonesty.  The majority of the remainder of the offences are in connection with dangerous drugs.

10.I am informed that you now cohabitate with a lady from China, and she gave birth to a son recently.  As a result of your previous convictions, you have had difficulties in securing a job, and in order to provide for your child, you then resorted to committing these crimes.  Your letter seemed to me to speak from your heart that you have now had a very large change in life and become a father and have promised to turn anew.  This, defendant, only you are able to control whether you, as  you say, promise not to reoffend again for the benefit of your child.

11.You have acknowledged yourself that you are a repeat offender.  Mr Kwong has also acknowledged that fact and has informed me that he has advised you that your criminal record is an aggravating factor which calls for a stiffer sentence.

12.Defendant, as Mr Kwong has rightly pointed out, your strongest and most powerful mitigating factor here is your plea of guilty.

13.Defendant, in respect of the charges to which you have pleaded guilty, there are two aggravating factors.  The first, as I have mentioned already, is the fact that you are a repeat offender, and hence your appalling past criminal record.  The other is in respect of Charge 2, whereby when you burgled the premises, you startled the occupant.

14.I accept it was 2 o’clock in the afternoon and not in the early hours of the morning or at night, when people are expected to be sleeping.  Further you appeared to be pressing the doorbell for a number of times to find out whether anybody was inside.  Nevertheless, the fact is you did enter these premises and startled the occupant, this in my view is an aggravating factor.

15.Defendant, you are a professional burglar.  I am informed by the prosecution that neither of these premises’ locks were broken or their doors were damaged. The neighbour saw you fiddling with the iron gate and fiddling with the wooden door, and somehow you managed to open the doors.

16.Upon your arrest, when you were searched by the police officers, you were found to be in possession of two plastic cards. There is no evidence that these cards were used for the purpose of entry, but it seems to me that they may well be in connection with the entry to these premises.  Nevertheless, the point I am making here is that being a professional burglar, as you are, you managed to open doors without breaking or damaging them.

17.Defendant, the usual starting point for burglary of domestic premises is one of 3 years’ imprisonment had you been convicted after trial.  That is the starting point I take in respect of both charges.  In respect of the aggravating factor of your appalling criminal record, I enhance that term by 6 months, and the starting point will then be 3 years and 6 months’ imprisonment. 

18.In respect of Charge 2, the fact that you startled the occupant, I consider a further enhancement of 3 months to be appropriate.  Therefore, the starting point on Charge 2 shall be 3 years and 9 months’ imprisonment.

19.I must take into account the principle of totality.  These were two separate burglaries daringly committed at neighbouring premises within a very short time of the other.

20.I accept nothing was stolen from these premises.  In those circumstances, had I convicted you after trial for these two offences, I would think appropriate a starting point of 4 years’ imprisonment would be correct.

21.Giving you full credit for your plea of guilty, that term will be reduced to 2 years and 8 months’ imprisonment, or 32 months’ imprisonment, and that is the term to which you shall be so sentenced.

22.I now sentence you for the individual offences. As I mentioned, Charge 1, you will be sentenced to 3 years and 6 months’ imprisonment.  Giving you full credit for your plea of guilty, that term shall be reduced to 2 years and 4 months’ imprisonment.

23.On Charge 2, you would have been sentenced to 3 years and 9 months’ imprisonment after trial.  However, giving you full credit for your plea of guilty, that term is reduced to 30 months’ imprisonment.

24.To reflect the overall term of 32 months’ imprisonment, I order 2 months of Charge 1 to run consecutive to Charge 2.