HKSAR v. CHAN WAI LUEN

DCCC 893/2021

[2022] HKDC 305

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 893 OF 2021

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Burglary". He burgled a unit in an industrial building by taking away a bucket which contained $700 cash and 2 USB memory sticks.

Summary of Facts

2.  The burgled premises ("the Unit")  were situated at Room 1504, 15^th Floor, Wang Lung Industrial Building, No.11 Lung Tak Street, Tsuen Wan.  The Unit was rented by Wen Yi Trading Limited ("Wen Yi")  for running a laundry business.  The Unit was once burgled on 7 April 2021.  As a result, its roller shutter was broken and could not be locked since.

3.  Around midnight on 12 April 2021, Mr. Yiu (PW1), a staff member of Wen Yi, closed the main door and roller shutter of the Unit without locking them and then left. He returned to the Unit around 8:30 p.m. on the same day.  He found signs of ransacking and discovered that the CCTV cameras having been moved from their original positions.

4.  PW1 reviewed the CCTV footage.  He saw a male entering the Unit around 2:05 p.m. on 12 April 2021.  That male ransacked the desk and left the Unit after about 5 minutes.  PW1 also found a plastic bucket which contained $700 cash and 2 USB memory sticks (valued at $480 in total)  missing from the desk.  The Police was alerted.

5.  The CCTV footage also captured the male twisting the angles of the CCTV cameras.  He left the Unit holding a bucket-like object in white colour.  Around 4:21 p.m. on the same day, that male entered the Unit again and walked straight to the room within the Unit.  He left with empty hands around 4:28.

6.  A fingerprint was lifted from the roller shutter of the Unit.  It belonged to the defendant.

7.  The defendant was arrested at his home on 15 June 2021.  A house search was conducted.  Clothes and shoes which looked identical to those worn by the male intruder captured by the CCTV footage of the Unit were found and seized.

8.  Under caution, the defendant claimed that he was asked by the landlord of the Unit to go there to collect rent.  He was also told that the roller shutter was not locked.  He admitted having entered the Unit and twisted the angles of the CCTV cameras.  He denied having stolen anything.  He claimed that he went inside to look for a tenancy agreement but was unable to find it.  In his video recorded interview, the defendant repeated the same story with more details.

9.  The agent and nephew of the owner of the Unit, Mr. Yeung (PW3), was contacted by the Police.  PW3 produced the then existing tenancy agreement of the Unit, the contents of which disproved the defendant's rent-collecting story.  PW3 also denied having appointed anyone to collect unpaid rent from Wen Yi.  Call records of the phone numbers given by the defendant also disproved his own story.

10.  The defendant now admits that he burgled the Unit.

Mitigation & Sentence

11. The defendant is 46 and has 7 conviction records, which included 2 "Theft" offences and 3 "Robbery" offences. Defence counsel Mr. Wong informed me that the defendant is married with an adult son. He was a delivery worker earning about $18,000 per month. His wife works as a sales person in a department store.

12. In mitigation, Mr. Wong submitted that the defendant has managed to behave himself since he was released from prison in 2004/2005. Owing to his recent gambling habit, he lost all his savings and incurred heavy debts. The defendant committed the present offence out of greed.

13. The defendant has only himself to blame. 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, needless to say that the defendant's problems arose from his own gambling addiction. He also committed the present burglary offence just 2 months after he was given a suspended sentence for a theft offence in WKCC 219/2021[2].

14. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. Although no actual breaking-in was involved, the Unit being left unattended with its roller shutter unlocked did not in any way serve as an invitation for the defendant to go in there. In any event, for his benefit, I accept that there is a slight element of "opportunistic burglary". I consider a starting point of 27 months' imprisonment appropriate and just. With the timely guilty plea, the sentence is reduced to 18 months. I will grant an additional discount of 1 month for making compensation to Wen Yi. I sentence the defendant to 17 months' imprisonment.