HKSAR v. Ng Pui Lam

DCCC 502/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 502 OF 2015

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REASONS FOR SENTENCE

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Introduction

1.The defendant pleads guilty to one charge of burglary, contrary to s 11(1)(b) and (4) of the Theft Ordinance, Cap 210, admitting that he had, together with another person, entered as a trespasser a domestic flat in Yau Ma Tei, Kowloon and attempted to steal therein.

2.According to the Summary of Fact which the defendant admits, he was caught in the act in the living room of the subject premises and at the time he was stocking masked. His accomplice, who stood outside the main gate of the premises when the offence was discovered but left before the police arrived, was armed with a knife. A bag containing equipment including an electric drill, a screwdriver, a chopper and a pair of pliers, which did not belong to the premises, was found inside the premises. A pair of labour gloves was found lying on the floor. Besides, there was a hole on the wooden board covering the rear entrance of the flat. The defendant admitted under caution that the hole was made by his accomplice for gaining entry to the premises.

Antecedent and records

3.The defendant is aged 45 years. He had 23 court appearances before resulting in a total of 30 convictions and 7 of which are offences of dishonesty and the rest are mainly drug-related.

4.The defendant was last released from prison on 25 April 2015 for possession of dangerous drug. Therefore, the present offence was committed when he had been released for about two weeks only.

Mitigation

5.Mr Tse who represents the defendant emphasizes the timely plea of the defendant, the fact that the defendant had not put up any struggle when discovered, that no one was injured in the offence and that nothing had been stolen.

Sentencing consideration

6.The Court of Appeal has laid down a tariff for burglary. The correct starting point for sentencing a burglary of a domestic premises committed by a first offender of full age is 3 years: see Attorney General v Lui Kam Chi [1993] 1 HKC 215. However, if there are aggravating factors present the sentence should be adjusted upwards. In saying this, I have not ignored that if the case involved a vacated residential building awaiting redevelopment and that the accused could be considered a "sneak thief" or the offence an "opportunistic theft", the starting point for sentencing should be lower than 3 years: see HKSAR v Chau Man Ying, CACC 439/2011.

7.In the present case, the subject premises was not in fact vacated. The flat was well-decorated and it would be apparent to anyone who had entered that it was occupied and used as a residence. It was only that the owner and her maid were not at home. The parties agree that the Court may look at the photographs of the premises taken by the Police. See Photograph No 12 of the Photo Album. Although the defendant asserted under caution that the whole building was awaiting re-development and that he had thought that the things there were not wanted, Ms Yip who represents the prosecution does not accept that assertion.

8.Mr Tse was asked by the court to address the issue whether the defendant had in fact believed that the subject premises were vacated and that the things inside were unwanted. Having taken instruction, all Mr Tse could say is that the defendant was told by his accomplice that the whole building was pending re-development and that the defendant thought that no one wanted the things there.

9.However, having carefully considered the facts as admitted and the inherent probabilities, I reject the defendant's assertion that he had thought the things in the subject premises were not wanted. My reasons are as follows:-

(a) the defendant admitted that he and his accomplice had to break in. As such, he must have been aware the owner had every intention to exclude outsiders and that the things inside were not unwanted;

(b) the defendant said that he put the stocking over his head as a disguise when he found that the premises was installed with a CCTV. According to the Summary of Facts, when the defendant was discovered by PW1 in the living room, the alarm was ringing. The above shows that the defendant had not desist from the offence after he had entered;

(c) the defendant’s possession of the gloves, stocking and equipment suggests that the offence was pre-meditated; and

(d) the accomplice was standing outside the premises and armed with a knife when the defendant was attempting to steal inside, which suggests that the accomplice was acting as a lookout. That would not have been necessary had the defendant thought that the premises was vacated.

Sentence

10.Based on the above, I am satisfied that the only reasonable inference is that at the material time the defendant did not in fact believe that the subject premises was vacated or that the things there were unwanted. Instead, I find as a fact that the burglary was a premeditated one. Therefore, I am of the view that the case of Chow Man Ying concerning sentencing of burglary of vacated premises is not applicable to the present case and that the appropriate sentencing starting point, before consideration of any aggravating factors, is one of 3 years’ imprisonment.

11.There are some aggravating features in the present case, namely that (i) the offence was a joint enterprise between the defendant and his accomplice; and (ii) the offence was a pre-meditated one which involved the use of equipment for breaking in. For each of the above aggravating factors, I add 3 months to the starting point: see HKSAR v Lee Chiu Yui, also known as Lee Hung Kim, CACC 24/2014 and HKSAR v Lai Fu Hing, CACC 388/2013. Although the defendant has a poor record, I note that his last convictions for dishonesty were in 2010 and therefore I will not treat his record as an aggravating factor. As a result, the sentence, before any reduction for mitigation is one of 3 years and 6 months.

12.After the customary one-third discount for the plea, the defendant is sentenced to 2 years and 4 months’ imprisonment.