HKSAR v. Tsang Leung Kwan and Another

DCCC 850/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 850 OF 2013

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Reasons for Sentence

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1.Defendants, you have both 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.

2.You have admitted that on 7 June 2013, you attempted to enter as trespassers part of a building which was a café on the ground floor and mezzanine floor of Pei Ho Street, Sham Shui Po, namely Wing Wah Café Limited.

3.In the early hours of 7 June, police officers were conducting an anti-burglary operation within the vicinity of that café.  They had observed both of you acting suspiciously.  At that time D1, you were carrying a rucksack.  Defendants, you were seen to have walked up and down the staircase of an adjacent building to the café and wandered within the vicinity.  You were also observed to approach the main entrance of the café and tamper with the padlock on a number of occasions.

4.At about 3.37 am, you were both intercepted by the police for investigation.  Upon search of the rucksack carried by you, D1, a number of tools that could be used for breaking in were found.  They included crowbars, screwdrivers, pliers, a saw, gloves and a torch.

5.Under arrest and caution, D1, you admitted that you brought those tools for breaking in, and they belonged to you.  Under arrest and caution, D2, you admitted that you were acting as a lookout for D1 and you did not take part in the prising.  In a subsequent interview, D2, you admitted that you had intended to burgle that café, and besides acting as a lookout, you had tried to prise the storeroom on the mezzanine floor, but failed to gain entry to the café.

6.The CCTV video recording had captured the images of both of you when you tried to prise open the iron gate of the storeroom and tampered with the padlock at the main entrance of the café.

7.Forensic tests showed that there were prise marks on the iron gate of the storeroom, and they were consistent with having been made by a crowbar and a screwdriver found in D1’s rucksack.  Further, the paint found on the crowbar matched the colour of the paint on the iron gate. DNA tests confirmed that D2’s DNA was found on the torch in D1’s rucksack.

8.You both admitted to attempting to enter the café as trespassers with intent to steal therein.

9.Defendants, you are both represented by separate counsel today before me.  Mr Chan Siu-ming represents you, D1, and Mr Chan Pak-kong represents you, D2.  I will summarise the mitigation together where it is common to you both.

10.In summary, both counsels have said that you were both instigated by a third person to commit this burglary.  You had both had difficulty finding a job and were unemployed as you had both recently been released from prison.  You had attempted to assist the police by giving the police non-prejudicial statements in respect of this third person who had instigated you both.  Despite that third person being arrested, there was insufficient evidence to prosecute him.  The prosecution has confirmed this.

11.As said by both counsel, the strongest mitigating factors for you both are your pleas of guilty at a very early stage.

12.D1, I turn to you first.  You are aged 54.  You have a total of 19 previous convictions, eight of which are similar - that is for burglary - and you have 15 offences relating to dishonesty.  At the time of your arrest you were unemployed.

13.As for D2, you are 56 years of age.  You have 27 previous convictions.  20 of those convictions are similar - that is for burglary - and a further four are related to dishonesty - that is, two for going equipped for stealing and two for robbery.

14.Defendants, the reason for you committing this offence is, as I am told, was because you were in financial constraints.  For separate cases, both of you had just recently been released from prison after serving a term of imprisonment for a related offence of attempted burglary.  D1, you were released from prison on 13 May 2013, and D2, you were released on 22 May 2013.  Less than one month later you were committing the exact same offence.

15.This was not opportunistic crime.  This was a well‑planned and premeditated crime for burglary.  You had equipped yourselves with all the proper tools to break in to premises.

16.No doubt you are well aware that for this type of non‑domestic burglary, the Court of Appeal has laid down guidelines for sentence for the courts to follow.  A starting point after trial of 30 months’ imprisonment is appropriate for this offence.

17.In this case there are, however, aggravating factors for which that starting point will be enhanced.  One of those factors is your appalling criminal records.  You both have numerous previous convictions for dishonesty and more particularly for that of burglary.  The other aggravating factor is that this burglary was committed by more than one person; that is, by the two of you together.

18.In those circumstances, defendants, I shall sentence you to the following terms of imprisonment.  Had I convicted you both after trial, I would have taken a starting point of 30 months’ imprisonment.  I enhance that sentence by a further 8 months for your appalling criminal records, and as there was more than one person committing this burglary, that shall be enhanced by a further 1 month.  The starting point after trial will therefore be one of 39 months’ imprisonment.

19.Giving you full credit for your plea of guilty and giving you a one third discount, that term is reduced to one of 26 months’ imprisonment, which you shall so serve.