HKSAR v. WONG TSZ KIT AND ANOTHER

DCCC 1022/2021

[2022] HKDC 831

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1022 OF 2021

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REASONS FOR SENTENCE

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Introduction

1.  D1 and D2 are convicted upon their own guilty plea on the joint charge of burglary took place on 23 August 2021 at Tsuen Wan Lutheran School, Cheung Shan Estate, Tsuen Wan (the “School”).  Eight bundles of electric wires and forty-five copper rings were stolen as a result.

Facts

2.  At all material times, the School was secured with cement wall and barbed wire fences of 2.5-meter tall, and was enclosed with a metal gate.  The School building had two entrances, ie East gate and West gate, both secured with metal chains and locks.

3.  At about 10 am on 23 August 2021, it was found that copper wire worth HK$1,500 was stolen from the School, and the metal chain at the East gate was cut open.  At about 1:40 pm on the same day, D1 and D2 were seen passing through the broken wire fences near the West gate.  Their presence there aroused suspicion of a staff member of the School who shouted aloud.

4.  Meanwhile, police officers were at the hillside near the School conducting anti-burglary operation.  They saw D1 and D2 climbing through the hole of the School’s barbed wire fence, and therefore intercepted D1 and D2.

5.  Two bags were found near the broken wire fences where D1 and D2 climbed through:-

•  one bag in blue (the “Blue Bag”)  contained eight bundles of electric wires of over 1,000 meters long and forty-five pieces of copper rings; and

•  another bag in green (the “Green Bag”)  contained a power drill, a pair of pliers, a wrench and some broken metal pipes.

6.  Upon arrest and under caution, D1 said inter alia that he entered the School at around 11 am through the hole of the fence and that he wanted to see if there was anything he could pick.  At the time of arrest, D1 was carrying a bag containing inter alia scrap metal and a pair of pliers.

7.  Upon arrest and under caution, D2 said inter alia that he and D1 cut open the metal chain at the East gate, that he climbed through the hole of the fence just then, and that he was carrying the Green Bag containing a drill and some broken metals.

8.  The eight bundles of electric wires and forty-five pieces of copper rings contained in the Blue Bag were worth HK$3,350.  The stolen electric wires were, before being stolen, installed into different electric chambers inside the School’s bump meter room and were ready to be in use.

D1’s background and previous conviction record

9.  D1 was born in February 1974 and is now 48.  He received education up to Form 1 level.  Prior to his arrest, D1 worked as a driver earning HK$18,000 per month.  He is divorced and has a son of 6 years old who is now in foster care because of D1’s incarceration.

10.  D1 has 15 previous convictions resulting from 11 court cases, out of which there were 3 convictions of burglary sentenced in 2007, 2011 and 2014, and 10 convictions of theft sentenced between 2007 and 2019.

D2’s background and previous conviction record

11.  D2 was born in November 1965 and is now 56.  He received education up to Form 1 level.  Before his arrest, D2 worked as a casual decoration worker earning about HK$5,000 per month.

12.  D2 has 40 previous convictions resulting from 33 court cases, out of which there was one conviction of burglary sentenced in 1990, one conviction of robbery sentenced in 2002, and 18 convictions of theft/attempted theft sentenced between 1989 and 2019.

Mitigation for D1

13.  D1’s counsel referred me to R v Wong Man CACC 372/1992 and submitted that there was no aggravating factor in this case.  It was also submitted that D1 hoped to be released as soon as possible so as to regain custody of his 6-year-old son so that D1’s mother could reunite with her beloved grandson.  I was reminded that D1 pleaded guilty and a one-third reduction in sentence should be given.

Mitigation for D2

14.  D2’s counsel referred me to HKSAR v Cheng Wai Kai CACC 338/2007 and submitted that the starting point for non-domestic burglary was 30 months’ imprisonment.  It was also submitted that in the present case, there were no aggravating circumstances other than that the offence was committed by two persons.

Sentence

15.  For burglary of non-domestic premises, the starting point is 30 months’ imprisonment for a first offender of full age.

16.  In HKSAR v Cheng Wai Kai CACC 338/2007, Yeung JA (as he then was)  said that the starting point could be adjusted upwards if there were aggravating circumstances.  One of the aggravating circumstances is when the offence is committed by two or more people.  In the present case, the offence was committed by D1 and D2.

17.  Further, the stolen electric wires were, before being stolen, already in use and connected/installed in various electric chambers.  By cutting off the electric wires from the electric chambers, a risk of electrocution was created.

18.  Because of the aforesaid, I make an upward adjustment of 4.5 months’ imprisonment from the starting point of 30 months’ imprisonment, thus resulting in 34.5 months’ imprisonment.

19.  D1 has 3 previous convictions of burglary but the last one was sentenced in 2014, more than 7 years before the commission of the present offence.  D2 has 1 previous conviction of burglary sentenced in 1990.  I am not going to upward-adjust the sentence because of their previous convictions.

20.  D1’s son is only 6 and is now in foster care.  D1 should have considered the hardship that would have caused to himself, his son and his mother before he committed the present offence.  I do not consider it a valid mitigating factor.

21.  The only valid mitigating factor for D1 and D2 is their timely indication of guilty plea.  One-third discount is given to each of them.  As a result, each of D1 and D2 is sentenced to 23 months’ imprisonment.