HKSAR v. Tsoi Shing Bun

DCCC 27/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 27 OF 2015

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REASONS FOR SENTENCE

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1.Tsoi Shing Bun you have pleaded guilty to one charge of burglary, contrary to section 11 of the Theft Ordinance, Chapter 210 (charge 1) and one charge of assault occasioning actual bodily harm, contrary to section 39 of the Offences against the Person Ordinance, Chapter 212 (charge 2).

2.In summary just after midnight on the 30 November last year Mr Chan Wai Kin, a security guard, was patrolling a building under construction at Anderson Road in Sau Mau Ping when he saw you on the mezzanine floor of the building.  After telling Mr Chan you wished to take some iron wire you walked down to the lower ground floor.

3.Mr Chan summoned assistance from his colleague Mr Lam who asked you if you were a staff member of the construction site.  You replied you were not and walked quickly towards the upper ground floor.  Police enquiries revealed you had formerly worked on the construction site.

4.On reaching the upper ground floor Mr Chan placed his hands on your shoulder whereupon you turned round and pushed Mr Chan causing him to fall on the ground.  The police arrived shortly afterwards and arrested you.

5.In passing sentence I have carefully considered everything said on your behalf by Miss Wong, including that you have elderly parents to take care of. 

Burglary

6.The building under construction was a residential building.  The correct starting point for a single burglary of residential premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years imprisonment. Being a construction site this can be regarded as non-domestic premises for which the conventional starting point is 2½ years imprisonment.  Lower starting points have however been taken where the premises are not occupied and the burglary described as opportunistic (see for example HKSAR v Chau Man Ying CACC 439/2011).  

7.I am told on the night of the burglary you were working at a nearby construction site.  On being told that there was a shortage of iron wires for binding steel you decided to see if you could find some wire from the construction site you had previously worked at.  I must say I have my reservation the burglary was committed in these circumstances in particular considering six weeks earlier you had been arrested for stealing iron wire from another construction site. 

8.Notwithstanding my reservations I proceed on the basis the burglary was not planned.  Taking into account the building was under construction I am satisfied that a starting point of 18 months imprisonment is appropriate. 

9.You cannot be given credit for a clear record having appeared before the court on ten occasions, most recently for burglary and theft.  In respect of the theft (KTCC 5044/2014), which was from a construction site in circumstances very similar to the present case, you were sentenced in December last year to 4 months imprisonment.  You were also sentenced to 2 weeks concurrent for resisting a police officer.  I do not increase the sentence by reason of your previous offending however should you commit burglary again you may then be regarded as a persistent offender.

10.The offence was however committed whilst you were on bail for the theft from the construction site.  The commission of offences on bail is an aggravating feature of sentence.  In the circumstances I increase the starting point by 3 months imprisonment to 21 months imprisonment.  Giving you full credit for your plea of guilty you are convicted and sentenced to 14 months imprisonment.

Assault

11.In an attempt to avoid being apprehended you pushed the security guard away causing him to fall on the ground.  Mr Chan suffered injuries to his right hand, right shin and left thumb.  Fortunately the injuries sustained by Mr Chan may be described as minor and from which I am told he has fully recovered.  

12.I am satisfied a starting point of 4 months imprisonment is appropriate.  Giving you full credit for your plea of guilty you are convicted and sentenced to 2 months and 20 days imprisonment (see for example HKSAR v Lau Hiu Man [2013] 2 HKLRD 862).

Totality

13.Although the assault can be said to arise from the burglary this is a separate and distinct offence for which a consecutive sentence is appropriate.  I order 1 month consecutive and 1 month and 20 days concurrent making a total sentence to be served by you of 15 months imprisonment which I am satisfied properly reflects your criminality on the two charges.

14.Notwithstanding you have now served the sentence for the theft charge I have also considered what sentence I would have imposed had all matters been heard together.  In my view you can be said to be fortunate to have only be charged with theft and not burglary.  Even on a theft charge considering you were equipped on that occasion with a wire- cutter the sentence is on the low side.  Also the sentence for resisting a police officer should have been consecutive.  I would have imposed a sentence of more than 4 months and in considering totality of sentence I would have ordered not less than 4 months consecutive.