HKSAR v. Cheng Kam Cheong and Another

DCCC 987/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 987 OF 2014

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REASONS FOR SENTENCE

1.Both D1 and D2 pleaded guilty to a charge of "Burglary". The burgled premises are 2 residential units located at Yuen Long.

Summary of Facts

2.There is a building situated at DD121, Lot 1163, Tong Yan San Tsuen, Yuen Long ("the Building"), which is divided into Blocks A and B.  Madam MAU and her family reside in Block B.  Mrs. CHU is the owner of Block A, which is left vacant.

3.In the morning on 28 August 2014, Madam MAU left Block B and there was no one else home.  On the same day, the Police kept a private car NA 3783 ("the Car") under surveillance. DPC 7580 was the Observation Officer.

4.At 10:20 am, the Car was parked near the Building.  D1 sat in the front passenger seat; and D2, the driver seat.  They got in and out of the Car repeatedly and loitered around the Building.  They also appeared to be talking to each other.

5.At 1:10 pm, D1 took some white objects from the boot of the Car and went to the Building.  A minute later, D2 left the car and walked towards the Building.  On his way, D2 covered his head with a white towel.  D2 joined D1 outside the Building.

6.At 1:20 pm, D1 and D2 climbed over the concrete wall surrounding the Building ("the Wall").  D1 then climbed onto the fence separating Blocks A and B ("the Fence").  D1 stood on top of the Fence and climbed to the concrete structure outside the 1^st Floor of Block B.  He opened a window of Block B and went inside.  Shortly afterwards, D2 entered Block B through the same window.  The Observation Officer immediately alerted his teammates; they laid ambush nearby.

7.At 1:25 pm, D1 climbed out of the same window.  He then climbed over the Wall to reach outside the Building.  About 2 minutes later, he entered Block B again by the same route.

8.At 1:30 pm, D1 and D2 were walking on the roof of the Building.  Suddenly, they fled from the gate of the Building.  Police officers laying ambush nearby immediately gave chase. During the pursuit, D2 threw away a white towel.  D1 and D2 were eventually intercepted.

9.Under caution, D1 said "Ah Sir, I am now arrested.  You can do whatever you want."  D2 said "I was caught red-handed.  You can do your job."  A white towel, a pair of gloves and a key of the Car were found on D2.

10.D1 and D2 were escorted to the Car.  Using the key seized from D2, the Police opened the car door.  The Car was searched and 4 white towels were found in the boot.  The Building was also searched.  An iron bar was found below the 1^st Floor staircase of Block A.  A hammer and a pair of gloves were found outside Block A.  Mrs. CHU confirmed that these items do not belong to her.

11.Mrs. CHU and Madam MAU checked Blocks A and B respectively.  Mrs. CHU found the doors of the roof, sitting room and garage of Block A having been unlocked and opened.  Madam MAU found prizing marks on the window frame of a bedroom on the 2^nd Floor of Block B.  The costs of repair were $200.  There were also signs of ransacking in one of the bedrooms of Block B.

Mitigation

D1

12.He is now 59.  He has 7 conviction records which include 17 burglary-related offences.  He was last sentenced to prison in December 2005 (for burglary) for 22 months.

13.Defence counsel Ms. CHU informed me that for various reasons, D1 and his wife need to live with and look after 2 grandchildren (aged 5 and 12).  Ms. CHU submitted that after D1 was released from prison in December 2006, he worked as a safety supervisor at construction sites.  He was able to earn a stable income of $9,000 per month. Unfortunately, D1's employer passed away in 2014 and the company was closed; D1 lost his job.  Owing to his age and criminal record, it was difficult for him to find another job. 

14.At the time of the offence, a new school term was about to start for D1's 2 grandchildren.  He foolishly decided to earn some quick money for their school expenses.  Ms. CHU stressed that after 2005, D1 had turned a new leaf in his life.  He managed for stay out of trouble for 9 years.

D2

15.He is now 52.  He has 2 conviction records, which include 1 offence of "Conspiracy to commit burglary".  He is married with 4 adult children (all of them in gainful employment).  Ms. CHU informed me that D2 is a part-time construction worker earning an average of $8,000 per month.  His wife is a cleaner in the Government.

16.Ms. CHU submitted that D2's last and only burglary conviction was in 1986 (almost 30 years ago).  Prior to the present offence, D2 had a dispute with his wife about his gambling problems; he promised to pay her back.  He therefore wanted to earn some quick money.

Overall Remarks

17.Ms. CHU emphasized that the present offence took place in the day time.  Block A was vacant and no one was home in Block B.  No person was alarmed by the burglary act or the presence of D1 and D2 at the Building.  Furthermore, nothing was stolen and only 1 window was damaged.  D1 and D2 are willing to share the repair costs equally.

Sentence

18.According to their criminal records, D1 and D2 were charged in the same case (HCCC 21/1986) with the same offence of "Conspiracy to commit burglary" in 1986.  In other words, though after almost 30 years, the present offence is the 2^nd time they acted in concert.

19.The Police found an iron bar, a hammer and a pair of gloves in the vicinity of Block A.  Mrs. CHU confirmed that these items do not belong to her.  D2 also had a pair of gloves with him when he was arrested.  Ms. CHU indicated that she has no instructions in relation to the tools found in Block A.  For the purpose of sentencing, I draw the irresistible inference that D1 and D2 had used or intended to use those tools to commit burglary (whether or not they brought them to the crime scene).

20.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.

21.The normal starting point for domestic burglary is 3 years' imprisonment.  D1 and D2 are no strangers to "Burglary"; D1 is no doubt a repeated offender and they were even partners once.  I have all the reasons to raise the starting point as deterrence.[1] On the other hand, I note that their last burglary-related convictions took place in 2005 and 1986 respectively.  Moreover, the owners of Blocks A and B suffered virtually no loss and both defendants are willing to compensate Madam MAU.  I will show mercy by not increasing the starting point. 

22.Ms. CHU has done all she could to mitigate on behalf of both D1 and D2.  I will adopt the usual 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.  I sentence D1 and D2 each to 2 years' imprisonment.