HKSAR v. Yiu Kwai Hung

DCCC 305/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 305 OF 2014

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Reasons for Sentence

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Charge and facts

1.The defendant pleads guilty to burglary.  At 0240 h on 17 February 2014, a male (subsequently at large) prised open the switch box of the roller shutter at the front entrance of a congee and noodle shop in Lok Wah North Estate, Kowloon.  At 0355 h the male returned to the shop with the defendant, who had a handcart.  He opened the roller shutter for the defendant to enter.  The defendant came out with 2 safes by the rear entrance.  The aforesaid happenings were recorded by the CCTV camera in the shop.  The person-in-charge found signs of ransacking in the shop.  Each safe cost $2,000.  There was $30,000 cash in the safes in total.     

2.A taxi driver told the police that he had seen the defendant and a female alight from another taxi at 0400 h.  The female (also at large) got onto his taxi and asked him to pick up the defendant in the carpark of Lok Wah North Estate.  Upon arrival there, he saw the defendant load 2 black boxes into the trunk of his taxi.  The CCTV camera in the carpark at 0409 h recorded the defendant getting onto a taxi outside the wet market where a handcart was placed. 

3.On 20 February 2014 the defendant was arrested for burglary of the shop.  During investigation he said:

(1) He stole the handcart from the market and entered the shop with it;

(2) He removed the 2 safes from the shop;

(3) He took a taxi to his squat underneath a flyover in Mong Kok;

(4) He prised open the safes with crowbar, hammer, pliers and screwdriver, which were then seized from his squat near the junction of Soy Street and Ferry Street;

(5) He spent the $30,000 obtained from inside the safes and discarded the safes in a rubbish bin nearby.

Personal background and mitigation

4.He is aged 41, of P. 5 education level.  He was unemployed at the time of arrest.  He has 7 previous records for burglary, 9 for theft, 1 for conspiracy to steal, 1 for going equipped for stealing, and 4 for robbery.  His last sentence dated 11 November 2013 was for burglary.  It was 3 months’ imprisonment.   His ever-longest imprisonment was 24 months, also for burglary. 

5.He is a recidivist burglar who has met with no deterrence from his previous sentences.  Besides, this is a joint enterprise involving 3 culprits.  These are aggravating factors which his solicitor does not dispute.

6.There is a mitigation letter from Father John Wotherspoon working with the Correctional Services Department.  He states that he will be the counselor of the defendant and help to find accommodation and employment for him after his release from prison. 

Sentencing guidelines for non-domestic premises

7.In R v Wong Man [1993] 1 HKC 80, the Court of Appeal said that the proper starting point for non-domestic premises would be 2 ½ years’ imprisonment for a first offender of full age.  As explained by Macdougall JA in HKSAR v Sim Ka-wing, CACC 450/2000, such a starting point has already included certain basic planning.

Sentencing this defendant

8.This is a burglary involving 3 culprits and synchronized logistics.  This is beyond the ordinary burglary envisaged in the sentencing guidelines.  From a basic starting point of 2 ½ years, I add 3 months because of this escalated aspect of planning and execution.  I further add 3 months for more deterrence to address his recidivism.  The eventual starting point is 3 years.  I reduce it by one-third for his plea of guilty.  He has no other mitigating factors.  His sentence is 2 years.