HKSAR v. Yu Yat San

DCCC 371/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 371 OF 2015

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to 1 charge of "Burglary" (Charge 1) and 1 charge of "Failing to surrender to custody without reasonable cause" (Charge 2).

Summary of Facts

Charge 1

2.Miss ZHANG (PW1) resides in one of the 3 subdivided cubicles situated at the flat particularized in Charge 1 ("the Flat").  A shoe cabinet ("the Shoe Cabinet") and a rack ("the Rack") were placed inside the Flat at the entrance for common use by its residents.  The defendant was not a resident of the Flat.

3.About 6:00 pm on 26 July 2014, PW1 returned home.  She saw from outside the Flat a male ransacking the Shoe Cabinet.  She was shocked and ran up to the roof of the building.  She called the Police and described the clothes worn by the male.  She later saw the same male coming up to the roof.  He picked up a walking stick and left.

4.Police officers soon arrived.  They intercepted the defendant at the staircase between the 3^rd and 4^th Floors.  He was holding a red plastic bag containing 2 pairs of female shoes, a pair of slippers and an iron bar.  He also held a walking stick.  PW1 identified all the items belonging to her; she had placed them either in the Shoe Cabinet or on the Rack.

5.Under caution, the defendant said he only went in to take some shoes for his own use.  His reply was recorded on the arresting officer's notebook, but the defendant refused to sign on it.

6.Enquiry was made with Mr. TSOI (PW2) who resides next door to the Flat.  PW2 explained that shortly before the incident, the defendant pretended to be a resident of the Flat and asked to borrow a screwdriver from PW2 since he had forgotten to bring his keys.  The defendant then used the screwdriver to prize open the metal grille and wooden door of the Flat; prizing marks were found on both.  The screwdriver was found on top of the Shoe Cabinet.  PW2 identified the defendant as the person who borrowed his screwdriver.

Charge 2

7.The defendant was charged with "Burglary" and was brought to Tsuen Wan Magistracy on 1 August 2014.  His case was adjourned to 17 September 2014 and he was granted court bail.  The defendant, however, failed to appear in court on 17 September 2014.

8.On 3 May 2015, the defendant was re-arrested at Lo Wu upon arriving from the mainland.  In his Record of Interview, the defendant claimed that he had gone to the mainland to visit a Chinese medicine practitioner for treatment, but was unable to provide any details or documentary proof.  Immigration record shows that he left Hong Kong on 9 September 2014.

Mitigation

9.The defendant is now 41.  He has 7 conviction records, which are all theft-related offences.  Defence lawyer Ms. CHENG informed me that the defendant is unemployed and relies on social welfare.  He recently had a divorce.  Mitigation letters were placed before me; their contents are duly noted.

10.In mitigation, Ms. CHENG submitted that the defendant is a drug addict.  He suffers from bone and back problems; he takes midazolam to ease his back pain.  Ms. CHENG further submitted that before committing the offence in Charge 1, the defendant had consumed drugs.  Hence, he was unable to comprehend the serious consequences of his acts.  Regarding Charge 2, the defendant went to the mainland to treat his back pain thinking that the expenses would be cheaper there.

Sentence

Charge 1

11.I need not speculate on the reason(s) why the defendant wanted to steal female shoes and slippers. I accept that the value of such properties is minimal.  The defendant, however, did use a screwdriver to break into the Flat.  Most importantly, PW1 was alarmed by the defendant's presence.  Ms. CHENG has invited me to call for a DATC Report.  In my view, regardless of the result of medical examination, a Drug Addiction Treatment Centre Order is manifestly inadequate for a burglary offence.

12.The normal starting point for domestic burglary is 3 years' imprisonment.  Despite the fact that all stolen properties were recovered, I do not see any reason for departing from the guideline.  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 the defendant to 2 years' imprisonment.

Charge 2

13.For this offence, the maximum sentence for conviction upon indictment is a fine of any amount and 12 months' imprisonment[1]. The defendant had absconded for almost 8 months.  Seeking cheaper medical treatment in the mainland is plainly not a reason for not attending court.

14.In HKSAR v WONG Chi Hung CACC 300/2010 (unreported Chinese judgment), the Court of Appeal upheld a starting point of 3 months' imprisonment for a person who has absconded for 28 days.  In the present case, I adopt a starting point 4.5 months' imprisonment; reduce it by one-third to 3 months, which shall be the sentence for this charge.

15.Charges 1 and 2 are separate and distinct.  Notwithstanding the totality principle, I order the sentence in Charge 2 to run consecutive to Charge 1.  The total of prison term for both charges is 2 years and 3 months.