HKSAR v. Ng Shu Yau, Billy

DCCC 304/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 304 OF 2015

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REASONS FOR SENTENCE
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1.Ng Shu Yau, Billy you have pleaded guilty to one charge of burglary, contrary to section 11 of the Theft Ordinance, Chapter 210.

2.In summary Mr Choi Kwok Man resided at Room G14, Block 13, Long Bin Interim Housing Area in Yuen Long.  At about 6 p.m. on the 5 January this year Mr Choi went to work in China having first locked the wooden door and metal gate. 

3.The next morning you were seen by a security guard removing the screws from the metal gate with a pair of pliers.  When asked by the security guard what you were doing you replied that the owner had asked you to repair the metal gate. The security guard told you that they had not been informed the gate required repair and therefore asked you to leave.

4.On the morning of the 7 January Mr Choi returned and discovered that the screw of the metal gate was opened and that there was a crack on the wooden door.  Upon entering the premises Mr Choi found the premises had been searched but no property was lost.

5.You were arrested on the 15 January.  Under caution and in a subsequent video interview you admitted using a pair of pliers to remove the screws of the metal gate and kicking open the wooden door.  You then searched the premises but did not take anything from the premises. 

6.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. 

7.In passing sentence I have carefully considered everything said on your behalf by Mr Yip.  I take into account this is your first burglary.  However you cannot be given credit for a clear record having nine previous convictions, five of which are for offences of dishonesty.  You were last convicted in July 2013 when you were sentenced to 12 months imprisonment for conspiracy to defraud.

8.I am told you committed the offence out of greed expecting to find something valuable inside the flat.  Due to the fact nothing was stolen Mr Yip submits a lower starting point is appropriate.  In support of his submission Mr Yip relies on the decision of the Court of Appeal in HKSAR v Law Tin Yam CACC 258/2010.  In that case the applicant stole a packet of cigarettes from an adjoining cubicle when the occupant was away on holiday and had left the cubicle unlocked.  The Court of Appeal said the appropriate starting point was one of 15 months imprisonment.

9.Mr Yip submits the facts are similar.  I disagree.  Mr Choi had locked both the wooden door and metal gate.  To gain entry you used a pair of pliers.  Further although you and Mr Choi were neighbours and knew each other you were not living in the same flat. 

10.I am satisfied this was not an opportunistic burglary warranting a reduction in the starting point.  The fact you did not find anything valuable to steal does not in my view reduce your culpability. 

11.I am satisfied the proper starting point after trial is 3 years imprisonment. Giving you full credit for your plea of guilty reduces the sentence to 2 years imprisonment. 

12.You have today paid into court the sum of $300 so that Mr Choi can be compensated for the damage to the door.  In recognition of this I reduce the sentence by 1 month.  You are convicted and sentenced to 1 year and 11 months imprisonment. 

13.I order you to pay $300 compensation to Mr Choi.  Payment is to be made from the monies paid into court today.