HKSAR v. Cheng Chi Shing

DCCC 238/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 238 OF 2014

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of burglary. He has agreed the facts of the case and I have convicted him.

2.The facts of the case which are agreed show that this is the burglary of a non-domestic premises at New Century Logistics Group Limited in Cheung Sha Wan.

3.The unusual feature of this building is that it was built near a hillside, so the outer wall of the building is accessible from the slope of the hillside.

4.The burglary occurred in the early morning of 11 January 2014.  There was a team of police officers watching the building.  At about 3.30 am they heard unusual noises.  At about 4.25 am the defendant and an unknown male were seen on a platform on the 6th floor outside the office at the hillside.

5.A hole had been broken into the outer wall of the office, and the defendant had placed his right leg into that hole.  Police found tools and items by the defendant, and there was another unknown male there.  The tools are listed in the facts.  We can see there was a crowbar, wooden poles, a hydraulic jack and a hydraulic cutter, a cable cutter and saws, water pipe, electric drill, screwdrivers and other items.

6.The defendant was arrested at the scene. Another man was seen to have escaped.

7.After arrest the defendant was cautioned.  Under caution he said that he had burgled the office with two other men in order to get money for the new year, and that the tools were brought there by another accomplice called “Ah Ming” for the purpose of burgling the office, and that was confirmed by observation of CCTV, where a third man can be seen entering the office via a hole in the outer wall.

8.The proprietor of the office was found.  He was able to confirm that there was no hole in the outer wall when he had left the office on 10 January and that $300 cash and a key to the safe were missing.

9.It can be seen to be a professional‑type burglary involving breaking in through the wall and the use of tools, although the proceeds of the burglary were small; not much was taken.

10.The defendant has agreed his antecedents.  His criminal antecedents show that he has a number of burglary convictions.  There are seven previous convictions for burglary or attempted burglary.  As early as 1985 he was placed on probation for burglary; he received a suspended sentence of imprisonment in 1993 for burglary; finally, in 1997, a first sentence of imprisonment of 3 years for a burglary in that year.  The defendant was most recently convicted for burglary in 2005, when he was sentenced to 3 years’ imprisonment, and was discharged from prison in 2007 for that offence.

11.The defendant completed primary school education level, is currently aged 56 years, and was unemployed at the time of his arrest.  He enjoys good health and lives with his family.

12.Matters were put forward in mitigation.  The defendant resides with his family.  He has children who he is responsible for. He did have casual employment in a soy sauce company, but was apparently laid off before this offence was committed, and found himself in financial difficulties with the approach of the new year and ended up committing this offence in order to obtain money.

13.In further mitigation it was said that the defendant himself did not bring the tools which were used in the burglary - they were brought by “Ah Ming”; the defendant was outside the premises, while the other was inside, so he appears to have been the watchman or the lookout; no physical violence against any person was used; and the office was burgled at a time when it would have been very unlikely that anyone would have been present; the proceeds of the burglary were small - only $300; and the defendant was co‑operative from the time of his arrest, giving an account of the burglary that is confirmed by independent material.

14.I am asked to consider also that the defendant’s last conviction for this offence was some years ago.

15.The starting point for a non-domestic burglary for a person of clear record in a simple burglary is one of 30 months’ imprisonment; 2½ years’ imprisonment.  I have to consider if that is the appropriate starting point for this particular burglary.

16.There are some aggravating factors in respect of this particular burglary:  the use of fairly sophisticated tools in breaking into the premises; that three men were acting in concert, and the defendant was one of them; and that damage was caused to the building in order to obtain access to it.  I consider that takes the case somewhat out of the normal non‑domestic burglary.

17.I consider that means that the actual starting point for this offence should be one of 36 months, or 3 years’ imprisonment.

18.There is one further aggravating factor which should be considered in the overall starting point, and that is the defendant’s previous criminal record.  There are a number of previous convictions for this particular offence, or the attempted version of it.  Set against that is the fact that the defendant appears not to have been involved, on his criminal record, in any event, in any burglary since the last one was committed in 2005.

19.I consider this provides some aggravation, and it would not be right to treat the defendant as a person of clear record.  I consider a further increase on the starting point of sentence of 3 months’ imprisonment is appropriate for that, so I am taking an overall starting point in this case of 39 months’ imprisonment.

20.The defendant is entitled to one-third discount from that.  That would be a total of 13 months, which leaves a final sentence of 26 months’ imprisonment, or 2 years and 2 months’ imprisonment.