HKSAR v. Cheng Shek Fai and Others

DCCC 221/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 221 OF 2014

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Reasons for Sentence

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1.The defendants are convicted after trial of one charge of burglary, contrary to s.11(1)(b) and (4) of the Theft Ordinance, Cap.210. Particulars are that the defendants together with another unknown person, having entered as trespassers part of a building known as “Ramen Jo” situated at ground floor, no.3 Caroline Hill Road in Causeway Bay, stole cash of $40,416.20, some receipts and a till.

Summary of facts

2.Police received information about a possible burglary of the noodle shop Ramen Jo. Covert surveillance was arranged and Police officers were sent to observe the area. There were also closed circuit television footages taken from cameras installed in nearby shops as well as from inside Ramen Jo, showing the arrival of a vehicle HW1011, the movements of the 4 men who were in the vehicle.

3.Police officers waiting in ambush in the area proceed to arrest the 3 defendants in the present case, while the driver of HW1011 got away.

4.According to admitted fact, the closed circuit television footages and evidence of the prosecution witness, D1, D2, D3 and the driver of HW1011 (“WP”) arrived at Caroline Hill Road together in HW1011 at 1:43am on 23^rd December 2013. After the car was parked they all got out of the vehicle and wandered around the area.

5.After some time, D2 took out a backpack from the boot of the car. He put the car back shortly afterwards while a black car unrelated to the case was parked across the road to Ramen Jo. After the car had gone, D2 went back to get the backpack. D2 and D3 then went to the glass entrance of Ramen Jo. D3 took out something from the backpack of D2 and then did something to the entrance. They then walked away. D2 then went back to the glass entrance and opened the door and entered Ramen Jo.

6.Once inside, D2 ransacked the till area and spent about 6 to 7 minutes inside the shop. D2 used tools to pry open the till and in the end took out the whole till and left the shop carrying the till.

7.D2 put the till into the boot of HW1011 and closed the boot. WP later on opened the boot and took out an umbrella and then walked over to hand it over to D2.

8.Shortly afterwards, Police officers waiting in ambush revealed themselves to intercept and apprehend the defendants. WP, the driver got into HW1011 and drove away despite one of the Police officers trying to stop him doing so.

9.D2 was seen to come out from a doorway near Ramen Jo and he ran when Police officer revealed his Police identity. D2 was eventually handcuffed after he fell on Pennington Street. D3 managed to run along Leighton Road until outside no.2-6A Causeway Road when he was caught up by Police officers and handcuffed.

10.D1 was intercepted and apprehended near Ramen Jo outside no.106 Leighton Road.

11.The backpack that D2 was carrying was recovered after D2 had dropped it when he attempted to escape, inside were found 2 crowbars, 1 screwdriver, torch, 2 pairs of gloves, the stolen receipts, cash and a handbag belonging to an employee of Ramen Jo. The umbrella that D2 dropped was also recovered next to the backpack.

12.A total of $40,416.20 was stolen, together with the till and some receipts belonging to Ramen Jo.

Previous convictions

13.D1 is of previously clear record.

14.D2 has one previous conviction for handling stolen goods in 1999.

15.D3 has 8 previous convictions. He was convicted of burglary in 2004 and 2006 in the District Court and was sentenced to 18 months’ and 3 years’ imprisonment respectively. This is his third burglary conviction in 10 years.

Mitigations

16.D1 is 41. He was born in Hong Kong. His wife lives in mainland China. D1 was working as a transportation worker earning about $10,000 a month. Mr. Lau submits that there are no mitigating factors other than the defendant’s clear record. When I inquired with Mr. Lau whether the fact that the burglary was premeditated, involved at least 4 accomplices with tools being used to gain entry to and burgle the premises would amount to aggravating factors, Mr. Lau said he had nothing to say on that.

17.D2 is 42. Prior to his arrest, he was working as a casual worker and would earn up to $16,000. His wife works as an airport security officer earning up to $10,000. The defendant’s mother is 64 and suffers from diabetes. The defendant provides for her mother’s medical bills which would be around $3,000 a month, as well as $4,000 to his wife for the upkeep of the family. Mr. Wu also submits that there are no mitigating factors.

18.D3 is 45, married with a 19 year old son. Mr. So pointed out that D3’s last conviction was in 2006 which was some 8 years ago and should not be taken as an aggravating factor. D3 tried hard to earn a decent living since his last imprisonment. He finished a management course and was working as an assistant foreman earning $20,000 per month.

19.In relation to the factors mentioned above, Mr. So submits that the facts in the present case are no different to many other burglary cases and should not be taken as aggravating factors.

Sentencing guidelines

20.It is trite law that burglary of a non-domestic premises attracts a starting point of 2 and a half years’ imprisonment (30 months), subject to mitigating and aggravating factors. It is not disputed that Ramen Jo is a non-domestic premises.

21.The maximum sentence for burglary is that of 14 years’ imprisonment.

Sentence

Aggravating factors common to all defendants

22.The burglary was premeditated and involving at least 4 accomplices and a getaway car. Tools were employed to gain entry into the shop as well as to pry open and take away the till.

23.For the said aggravating factors, I will adopt a slightly higher starting point, which is that of 33 months’ imprisonment.

Individual aggravating or mitigating factors and Sentence

D1

24.D1 is of clear record. This is a mitigating factor. Although he has been found guilty of the burglary in that he was ‘in it together’ with D2, D1 took a lesser role in the burglary when compared to D2 and D3. I find that this should also be reflected in his sentence. There are furthermore no other aggravating factors.

25.I will adopt a starting point of 30 months’ imprisonment having taken into consideration the said mitigating factors. Since he was convicted after trial, there is to be no discount on his sentence and D1 is sentenced to 30 months’ imprisonment.

D2

26.Although D2 is not of clear record, his last conviction was some time ago and I do not take that as an aggravating factor.

27.D2 was the person who actually entered Ramen Jo to steal. There are no mitigating factors. I will therefore adopt the above mentioned 33 months’ imprisonment starting point. Since D2 was convicted after trial, there is to be no discount and he is sentenced to 33 months’ imprisonment.

D3

28.This is D3’s 3^rd burglary conviction in 10 years. His last conviction was in 2006 when he was sentenced to 3 years’ imprisonment. I find this an aggravating factor in that D3 is a persistent offender.

29.D3 was the person who helped D2 to gain entry into Ramen Jo, he played a more important role than D1 and I would say a similarly important role in the burglary as D2. Taking into consideration his individual aggravating factor, as well as the common aggravating factor, I will adopt a starting point of 36 months’ imprisonment. Since D3 was convicted after trial, there is to be no discount and he is sentenced to 36 months’ imprisonment.