HKSAR v. Tam Pui Kei also known as Tam Pui Yam

DCCC 719/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 719 OF 2014

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REASONS FOR SENTENCE

1.Tam Pui Kei you have pleaded guilty to one charge of theft, contrary to section 9 of the Theft Ordinance, Chapter 210.

2.Full particulars of the offence are set out in the facts admitted by you on the 25 September 2014.  In summary at about 11:00 p.m. on the 25 June this year you broke into a godown in Pat Heung.  You went equipped with various tools including pliers, a screwdriver, spanners, wrenches and a clamp which you used to dismantle an air compressor placed in the open area of the godown. 

3.At the same time the police were conducting an anti-crime operation in the vicinity of the godown.  When they saw a private car stop briefly outside the godown you were seen walking towards the metal hoarding which surrounded the godown.  Another male followed carrying a bag.  The police officers feeling suspicious summoned for assistance. 

4.The police finding signs the metal hoarding had been prized entered the godown. You were then seen running out from near an air compressor.  The police intercepted you and under caution you said that you intended to steal parts of the air-compressor on behalf of a person called Wong who you said was your boss. Wong had driven you to the godown and after alighting from the car you pulled off the metal hoarding to enter the godown and used a bag of tools given to you by Wong to steal the parts of the air compressor. 

5.In a subsequent video interview you stated that you only mentioned dismantling the parts and never mentioned stealing.  In court I clarified this with Ms Tam who, having taken your instructions, informs the court that you knew dismantling the parts was dishonest because the air compressor did not belong to you and therefore what you did amounted to stealing.  In the video interview you went on to claim that because you were short of money you assisted Wong to dismantle the air compressor for a reward of $3,000.

6.The parts which had been dismantled were found at the scene.  These comprise of eleven different parts which at my request have been photographed (see photograph album 3) there inexplicably being no photographs taken of these parts or where they were found. 

7.The tools used to dismantle the parts were also found at the scene and are shown in photographs 7-14 of album 1.  The air compressor from which the parts are dismantled is shown in photograph 6 of album 2.

Theft or burglary

8.Originally you were charged with burglary.  On your appearance in plea court on the 2 September the charge was amended to theft.  The facts in support of the charge of theft are the same as those for the original charge of burglary.  On a first reading of the facts the proper charge would appear to be burglary, in particular there being reference to the godown surrounded by a 2 meter high metal hoarding and the entrance gate secured by two padlocks, which the manager checked was secured before he went off duty.

9.I therefore clarified this with the prosecution so that I understood the basis they proceed on the charge of theft and therefore the proper basis on which you are to be sentenced.  Mr Wilson Choi has explained the reason for the charge being amended is that the stealing took place in the open area of the godown as shown in photographs 3-6of album 2 and not the building seen in photograph 3 which was secured by the padlocks.   

10.The prosecution having proceeded on a charge of theft you are to be sentenced on that basis and not as if you were charged with burglary (see HKSAR v Muhammad Mursaleen CACC 103/2009 cited by Ms Tam)

11.In passing sentence I have read your letter of mitigation and carefully considered everything said on your behalf by Ms Tam, including that you were not the mastermind; that you co-operated with the police and that you have a daughter still at school to take care of.   

12.Although you have previous convictions for burglary I take into account these were in 1983 and 1986 close to 30 years ago.  As you were last before the court in 1986 and that you have a daughter still at school I called for a background report to know more about you. 

13.I have carefully considered the content of the report which confirms your daughter goes to school.  During your remand she is looked after by her elder brother. The daughter has also said she is able to manage her studies and asks you not to over worry about her. 

14.In addressing the court Mr Choi referred to HKSAR v Yeung Tin Yau [2012] 2 HKLRD 840 to say that in passing sentence the court can regard the theft as akin to burglary.  In Yeung Tin Yau the court considered whether theft of iron plates from a moored lighter was similar to burglary of the lighter. Accepting to a certain extent that the gravity of boarding a lighter for stealing is similar to that of burglary the court held for the lesser offence of theft a sentence of 9 months imprisonment was appropriate where the defendants aged 57 & 58 had otherwise been law-abiding citizens. 

15.Ms Tam submits the facts of Yeung Tin Yau are similar to the present case.  I disagree.  The theft in that case being from a vessel; items of relatively low value were taken and there was no breaking and entry onto the vessel, the circumstances of the theft are very different. 

16.Whether theft or burglary is more serious is fact sensitive.  Although not charged with burglary the present case is very much akin to burglary in that you had to break into the godown in order to steal.  The prizing of the metal hoarding and the point of entry to the godown is shown in photographs 8 & 9, album 1 and 8, 9 & 26, album 2.  

17.The target of the theft was parts of a portable air compressor. Whilst the parts stolen are valued at $20,000 I am told the air compressor is valued at $800,000.  Although you may not have known the value of the air compressor you must have known that the air compressor was valuable by the very nature of the air compressor itself. 

18.A manual of a portable air compressor has been submitted to court today for my consideration.  Photographs 10-15 of album 2 show where you cut the wires of the air compressor.  As a result this has necessitated repair work which was initially estimated to cost $400,000.  In view of the high value of the estimated repair costs I asked for further details of the repair costs and whether the repair had been carried out.  These details are contained in the witness statement of the sales supervisor of Atlas Copco, Mr Lee Chi Ming.  Mr Lee confirms the repair work has now been carried out and that the repair costs totalled $87,594.   

19.Taking into account that there was an unlawful entry to the godown by prizing open the metal hoarding; that you acted in concert with Wong who brought tools specifically for the purpose of stealing thereby showing the theft was planned and not opportunistic as in Muhammad Mursaleen; and the target of the theft was parts of a valuable portable air compressor resulting in relatively substantial repair costs, I am satisfied the starting point is one of 2 years and 6 months imprisonment. 

20.Giving you full credit for your plea of guilty you are convicted and sentenced to 1 year and 8 months imprisonment.