HKSAR v. TSE CHUN WAH AND ANOTHER

DCCC 465/2021

[2022] HKDC 286

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 465 OF 2021

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Reasons for Sentence

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1.  Both defendants have been convicted after trial of one burglary charge relating to a fruit and vegetable shop in Fanling Market area. They have been convicted of trespassing into the shop at about 3 am on 11 January 2021 and stealing $102.

2.  There is no need for me to repeat the facts of this case, I have set them out in detail in my verdict.

3.  The police had a tip-off that this burglary would take place and set up an anti-burglary operation in the area.  The 2 defendants were seen outside the shop, seen rolling up the metal shutter which was not locked at the time and closed it behind them.  I am sure 2 lockers of a cabinet of lockers were prised open by a crowbar and $102 in a plastic bag was stolen from one of them.

4.  If the defendants had been given better information or had prised open more lockers they would have found a float of $7,000 cash.  I am sure they were in the shop for only a few minutes before leaving together.  I was sure the 1^st defendant discarded or hid a crowbar in Styrofoam boxes next to the shop.

5.  I am sure the observation evidence was credible and when they stepped onto the road both men were arrested.

6.  I was sure the oral admission and subsequent video-recorded interview of the 1^st defendant was voluntary; it was a full admission of guilt.  The evidence was overwhelming, and I convicted both men after trial.

Mitigation

7.  The 1^st defendant is 57 years old, separated from his wife and living alone.  He has been a drug addict for over 30 years. He is not employed and living on government assistance.  He has a poor criminal record.  He has 29 convictions obtained in 25 court appearances.  The majority of his convictions are either drug related or theft.  He does have one burglary conviction, but it was 40 years ago.  Mr Chong has said all he can say in mitigation.

8.  The 2^nd defendant is 44 years old and a Nepalese national.  He came to Hong Kong in 1997 and at some stage applied for asylum. He is a Form 8 holder at present.  He admits that he is a drug addict, addicted to heroin for about 6 years.  He has 7 previous convictions from 5 court appearances with 2 relating to theft.  The others relate to drug and immigration offences.  He is single and is a street-sleeper relying on friends.

9.  Mrs Remedios has said all she can say on behalf of the 2^nd defendant and stresses that the usual starting point of 2 years and 6 months for a burglary of non-domestic premises should not be enhanced when full regard is taken of the facts here. 

10.  Although, there were two of them, the offence was not carefully planned, nor skilfully executed by professionals with the use of heavy instruments or equipment.  There was very little loss to this fruit and vegetable shop which did not even bother locking its premises. 

11.  She has provided me with three authorities to support the usual starting point and her submission.  I accept her submission and the correct starting point for a burglary of non-domestic premises is 2 years and 6 months.  I am persuaded in this case not to increase or enhance that starting point despite the fact that there were two burglars, and a crowbar was taken to the scene. 

12.  These two defendants were anything but professional and, although their previous criminal records are substantial, in particular the 1^st defendant’s, I am not inclined on this occasion to enhance the starting point due to recidivism.

13.  Accordingly, I take a starting point of 2 years and 6 months’ imprisonment for both the 1^st and 2^nd defendant.  I do not differentiate their culpability or roles. 

14.  I see no reason to apply any discount as they were both convicted after trial.  Therefore, the 1^st and 2^nd defendant are sentenced to 2 years and 6 months’ imprisonment.