HKSAR v. Tang Tit Chuen and Others

DCCC 586/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 586 OF 2014

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REASONS FOR SENTENCE

1.D1 and D2 each face a charge of "Burglary" (Charges 1 and 2 respectively). D1 to D4 are jointly charged with an offence of "Burglary" (Charge 3). They all pleaded guilty to the respective charge(s).

Summary of Facts

Charge 1 (against D1)

2.About 5:00 a.m. on 18 March 2014, a staff member of the restaurant particularized in Charge 1 returned to the premises and discovered the lock on the side door having been prized open.  The cashier area was ransacked and a safe was missing.  Cash in the sum of about $70,000 was also missing.

3.The CCTV footage of the restaurant captured a male entering the premises at 4:32 a.m. via the side door.  He ransacked the cashier area, removed the safe and left.

4.D1 was arrested on 23 March 2014.  In his video-recorded interviews, he admitted that he burgled the restaurant together with 3 males, namely "Wai Lim", "Ko Lo" and a dark skin man.  D1 also described how they committed the offence.  In short, D1 went into the restaurant whilst the dark skin man waited outside.  D1 removed the safe from the restaurant, and the dark skin man helped him carry it to the car which was waiting for them.  They went to a flat, opened the safe, divided up the cash inside and discarded the safe.

Charge 2 (against D2)

5.About 8:00 a.m. on 21 March 2014, a kitchen worker of the restaurant particularized in Charge 2 returned to the premises. He found a sliding door open and noticed signs of ransacking inside the restaurant.  The manager later confirmed that 2 safes located at the cashier area were missing.  Cash in a total sum of $50,307 was placed inside the safes.

6.About 6:50 a.m. on the same day, a cleaning lady of Tsing Yi Estate saw 2 men bringing a green garbage bin to the refuse collection point near Yee Yat House.  When she later emptied the contents of the garbage bin, she found 2 safes and a nylon bag inside.

7.The CCTV footage of Yee Yat House captured 5 males entering the building around 6:00 a.m. on 21 March 2014 with a large nylon bag placed on a trolley.  One of the males resembled the appearance of D2.  The CCTV footage of the carpark of Tsing Yi Estate captured a private car SJ 4773 entering the premises earlier that morning.  The Octopus card later seized from D2 was used for parking the same car on that occasion.

8.The fingerprints and palm print of D2 were found on the glass door of the restaurant.  The manager confirmed that the 2 safes found by the cleaning lady belong to the restaurant.

Charge 3 (against D1 to D4)

9.In the late evening on 22 March 2014, a team of police officers were on duty in the Shamshuipo area.

10.About 1:25 a.m. on 23 March, D3 was seen driving a private car SN 9712 along Pek Ho Street and parking it outside No.188 Hai Tan Street.  D1 and D4 alighted.  D4 took out a box from the rear passenger seat.  They then entered the building situated at No.188 Hai Tan Street whilst D3 waited in the car.

11.About 10 minutes later, D1 and D4 came out of the building and boarded SN 9712.  They drove to Nos.240-244 Lai Chi Kok Road to pick up D2.  They then drove towards Mongkok.

12.About 3:00 a.m., SN 9712 was seen near Kowloon City Road and Mok Cheong Street.  D3 was the driver.  D2 was seen near Ma Tau Kok Road and Pak Tai Street.  D3 drove around with D4 on board.  D3 eventually parked the car outside No.111 Pak Tai Street at 3:55 a.m. and D4 alighted.  D2 approached the car, took a black bag from the passenger seat and talked to D4. D4 got into the car again and left.  D2 then went to the restaurant particularized in Charge 3 and entered the premises.

13.At 4:00 a.m., the Police arrested D1 and D2 inside the restaurant.  SN 9712 was intercepted at Tam Kung Road where D4 rushed out from the car and fled.  D3 drove away and was pursued by the Police.  He stopped the car at Ma Tau Chung Road, alighted and fled.  DPC 54176 gave chase and arrested D3 at No.163 Argyle Street.  Various tools including screwdrivers, spanners, hammer, saw, chisel and gloves were found inside SN 9712.

14.The CCTV footage of the restaurant captured D3 and another male dining there the night before the burglary.

15.Under caution, D1 admitted that he committed the burglary because he had an outstanding debt.  In his video-recorded interview, he described how he and 3 other males committed the burglary and the role played by each person.

16.In his video-recorded interview, D2 claimed that he was invited to carry out some repair works at the restaurant, which could only be done at night when it is closed for business.  D2 was told that his reward would be $1,000.  D2 admitted that he entered the restaurant and saw many tools around D1, but claimed that he did not know what D1 was doing.

17.D3 remained silent under caution.  D4 was arrested on 22 April 2014.  He also remained silent under caution.

Mitigation

D1

18.He is 56 and has 9 conviction records which include 5 "Burglary" offences, 2 "Theft" offences and 1 "Going equipped for stealing" offence.  D1's counsel Mr. SUEN submitted that the premises involved in Charges 1 and 3 are both Hong Kong style restaurants, which are usually open for business for long hours.  Their security measures tend not to be sophisticated and access to the premises is relatively easy.  One can expect a few tens of thousands of dollars in cash be kept in the restaurant overnight.

19.Mr. SUEN stressed that D1 has been cooperative throughout and has made frank admissions to both charges.  The only evidence against D1 is his own confession.  In Charge 3, no cash was stolen and D1 is willing to pay for the damaged safe together with other defendants. 

D2

20.He is 25 and has a clear record.  His lawyer Mr. CHEUNG informed me that D2 comes from Tanzania.  He has a girlfriend back home and they have 3-year-old son.  D2 came to Hong Kong on a visa to carry out trading.  Mr. CHEUNG submitted that D2 was not the mastermind; he committed the offences because he was in financial difficulty.  Furthermore, D2 was willing to assist the prosecution by giving evidence against other defendants. His assistance was, however, not required since D1, D3 and D4 have decided to plead guilty to their respective charge(s).[1] Finally, D2 is willing to pay his share for the damaged safe in Charge 3.

D3

21.He is 47 and married with 2 children (aged 16 and 9).  He has 29 conviction records which include 38 "Burglary" offences and a number of theft-related offences.  D3 was sentenced for his 1^st "Burglary" offence in 1981 (at the age of 14).  His latest conviction is also "Burglary"; he was sentenced to 25 months' imprisonment in March 2012.

22.D3's counsel Mr. Grounds submitted that the only aggravating factor in D3's case is his previous similar convictions.  On the other hand, Mr. Grounds stressed that D3 pleaded guilty on the 1^st day of trial (a Monday); he was not affected by other people's willingness to assist the prosecution.[2]  Furthermore, as confirmed by Mr. Laskey, D3 had indicated his willingness to assist right after he entered his plea.  D1 and D4 changed their pleas to "guilty" 2 days later.  Mr. Grounds accepts that no one knows what caused them to change their minds, but submitted that D3's cooperation could set off his poor record.  D3 is also willing to pay his share for the damaged safe.

D4

23.He is 34 and has 11 conviction records which include 5 "Burglary" offences, 1 "Robbery" offence and 2 deception-related offences.  His 1st criminal offence is "Burglary", for which he was given a Care & Protection Order in 1994 (at the age of 14).  His latest conviction is also "Burglary"; he was sentenced to 34 months' imprisonment in April 2012.

24.D4's counsel Ms. SEE submitted that the defendants were not targeting at premises which are known for keeping valuables.  D4 did not plead guilty to the charge at the outset because the only evidence against him then was surveillance observation by police officers.  He was not caught at the crime scene nor did he make any admissions. Ms. SEE also submitted that in just 2 days, D4 changed his mind, which still saved the court's time and public resources.  No prosecution witnesses had to be called in this case. 

25.D4 is willing to make compensation for the damaged safe; he offered to pay $3,000 originally, not knowing how much the value of the safe was or that other defendants were also willing to make compensation.  D4 is willing and able to pay his share.

Sentence

D1 (Charges 1 and 3)

26.Charges 1 and 3 took place only 4 days apart. Although Charge 1 was only laid against D1, the evidence is clear that D1 and 3 other males were acting in concert. As primitive and simple as their plan may seem, they had a plan to commit burglary, and it was successfully executed.

27.In Charge 3, various tools were found in the car. According to his own admission, when the tools they had could not break the lock of the restaurant's main entrance, D1 returned to his flat to fetch a hydraulic clamp. He was no doubt a well-equipped burglar.

28.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.

29.The normal starting point for non-domestic burglary is 2.5 years' imprisonment. Based on the nature and value of the properties stolen, the offences were committed by 2 or more people and D1 being a repeated offender[3], I adopt a starting point of 3 years' imprisonment for each charge. A one-third discount is given for the guilty plea, reducing the sentence to 2 years. Apart from this, I see no other mitigating factors which warrant any further reduction. The sentence for each charge is 2 years' imprisonment.

30.I am aware (and the prosecution accepts) that the only evidence against D1 in Charge 1 is his own admissions. But apart from the usual one-third discount, I do not consider it necessary to exercise my discretion to grant him any reduction to reflect this aspect.[4]

31.Bearing in mind the totality principle, I consider a global starting point of 45 months to be appropriate for both charges. With the guilty pleas, the overall sentence becomes 30 months. Hence, I order 6 months in Charge 3 to run consecutive to Charge 1, thereby arriving at a total prison term of 30 months.

D2 (Charges 2 and 3)

32.He is a fresh offender, but he committed a "Burglary" offence 2 days in a roll. Similar to D1's situation, although Charge 2 was only laid against D2, the evidence clearly shows that D2 and 4 other males were acting in concert.[5] Likewise, their plan to commit burglary might have been a simple one, it was successfully executed.

33.Regarding Charge 3, D2 was arrested in the restaurant together with D1. If nothing else, he was at least a "pawn" in that "operation".

34.Although D2 is not a repeated offender, both offences were committed by 2 or more people with some degree of planning. Hence, I adopt a starting point of 33 months' imprisonment for each charge. A one-third discount is given for the guilty plea, reducing the sentence to 22 months. Regarding his willingness to assist the prosecution, the spirit should be encouraged but in the circumstances, I can only grant him a nominal discount of 2 months to reflect this. The sentence for each charge is 20 months' imprisonment.

35.Bearing in mind the totality principle, I consider a global starting point of 39 months to be appropriate for both charges. With the guilty pleas, the overall sentence becomes 26 months. Hence, I order 6 months in Charge 3 to run consecutive to Charge 2, thereby arriving at a total prison term of 26 months.

D3 (Charge 3)

36.He has an appalling criminal record. Mr. Grounds has tried his best to mitigate for him and to persuade me not to increase the starting point, notwithstanding this is D3's 39^th similar offence. D3 is plainly a repeated offender (much more serious than D1 and D4). I must increase the starting point to add an element of deterrence. I have also borne in mind that the offence was committed by multiple culprits. Hence, for these 2 aggravating factors, I shall raise the starting point from 30 months to 39 months. A one-third discount is given for the guilty plea, reducing the sentence to 26 months. Regarding his willingness to assist the prosecution, what D3 did was even less than D2, I can only grant him a nominal discount of 1 month to reflect this. The sentence for Charge 3 is 25 months' imprisonment.

D4 (Charge 3)

37.D4 is also a repeated offender and the offence was committed by multiple culprits. Same as D1, I adopt a starting point of 3 years' imprisonment. A one-third discount is given for the guilty plea, reducing the sentence to 2 years. Apart from this, I see no other mitigating factors which warrant any further reduction. The sentence for Charge 3 is 2 years' imprisonment.

Compensation Order

38.Mr. Laskey has confirmed that the damage caused to the safe in Charge 3 was $1,000. I order D1 to D4 each to pay $250 forthwith to the owner of the restaurant particularized in Charge 3 as compensation.