HKSAR v. YIP KAM FAI AND ANOTHER

DCCC 593/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 593 OF 2014

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Reasons for Sentence

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1.  In this case, the 1st defendant has pleaded guilty to one offence of burglary on the third charge, and the 2nd defendant has pleaded guilty to three offences of burglary, which are the three offences on the charge sheet.

2.  The defendants have admitted the facts against them, and I have convicted them of their respective offences accordingly.

3.  The facts admitted by the defendants show that the offences were committed as follows.  The first charge, faced by the 2nd defendant, occurred on 3 March 2014 at the Watei Japanese Restaurant in City One Plaza in Shatin.  These were premises that were secured with a roller shutter, and in the morning of 3 March, that roller shutter was found to be damaged, and it was also found that the safe, containing cash of $60,840, was missing from the staff room and another $1,000 was missing from a telephone box in the staff room.

4.  The CCTV camera located there has shown that two men had approached the restaurant at about 6.32 am that morning with a trolley, and the access panel on the roller shutter had been tampered with.  Entry had been gained into the restaurant, and then the safe had been removed on the trolley.

5.  The 2nd defendant was arrested for this offence on 12 March 2014, and he admitted he had committed that burglary because he had no money.  He admitted that he had committed the burglary along with two other men, “Ko Lo” and “Wai Lim”, that they had been equipped with a crowbar and a trolley and a screwdriver, and that the access panel to the roller shutter had been prised open to gain entry.  The safe had been removed and broken into at another location, and the defendant received about $15,000 as a result of that burglary.

6.  The second charge, for which the 2nd defendant also pleaded guilty, occurred at the Ming Pin Handbag Shop in he City Landmark in Tsuen Wan.  That premises had been locked on 6 March 2014.  At around 6 am the next morning, the glass window of the shop was found to be smashed.  A trolley and two hammers had been discarded outside the shop, and 11 handbags, valued at $437,080, had been taken from the display rack.

7.  Again, the CCTV footage revealed that the offence had occurred at around 5 o’clock in the morning.  Three males had been involved.  They were masked, and they had a trolley.

8.  The 2nd defendant was again arrested by the police in connection with the burglary.  He admitted he did this together with three other men - “Ko Lo”, “Wai Lim”, and a foreign male.  They had had a trolley and had also taken two hammers.  The glass window had been smashed and they had taken the bags.  He had received $20,000 for that burglary.

9.  In respect of the third charge, the 1st and 2nd defendants face this charge together.  This occurred at the ItaMoMo Café in the Kai Tin Shopping Centre in Kwun Tong.  At around 12.50 am on 10 March, a security guard found the access panel of the rolling shutter of the restaurant had been prised open.

10.  The police had eventually intercepted the 1st and 2nd defendants, and they were found to be in possession of a vice, a crowbar and a pair of gloves.  The defendants were eventually arrested for that offence.

11.  It was confirmed that nothing had been stolen from the ItaMoMo restaurant, but the CCTV camera confirmed that three masked males had loitered around the restaurant, and one was seen to prise open the access panel of the rolling shutter.  There had been an attempt to remove the safe, which had failed, and the burglars had left empty-handed.

12.  As I say, both defendants have admitted their roles in these particular burglaries.  They have also admitted their antecedent statements.

13.  They are both of the same surname and the same age, but are not actually related.  The 1st defendant is aged 38, a person who had been a decoration worker, and attained primary education level.  His criminal record shows that he has a total of 16 previous convictions.  I think it is fair to say the majority of those are for possession of a dangerous drug, though there are six offences involving dishonesty, namely obtaining property by deception.  This defendant was sentenced to a drug addiction treatment centre on 10 July of this year and is currently in that establishment. These offences put him in breach of a suspended sentence for that.  It is a suspended sentence on which no order has already been made on a previous occasion.

14.  The 2nd defendant is also aged 38.  He has been employed as a cleaner, and has primary education level.  He has 40 previous convictions, of which three are for burglary, and those were committed in 2006, 2007, and finally in 2013.  The defendant has a number of offences of possession of a dangerous drug and has been sentenced to a drug addiction treatment centre on, I believe, five previous occasions.  He also has seven previous offences of dishonesty, namely theft.  He has what I think one could describe as a very poor criminal record of persistent offending.  He has committed burglaries in the past, but I do not believe he could be characterised as a professional burglar at this stage.

15.  As far as mitigation is concerned, the 1st defendant has a relationship with another lady who has two children of her own, and the defendant is also the father of one other child with that lady.  Unfortunately the parents are both drug addicts and both receiving treatment, and so the children are currently in the care of Po Lin Kuk.  The defendant has had an addiction to “Ice” which he anticipates to be treated in the drug addiction treatment centre.  He accepts that a custodial sentence will be passed on him, and hopes to turn over a new leaf on leaving the prison.

16.  The 2nd defendant is also a drug addict and has clearly struggled with his addiction over the years, and this has no doubt led him into the criminality that one can see on his criminal record.  When he is not in custody he lives with his father.  He has found it difficult to maintain employment because of his drug addiction, and one has hope that following the completion of his sentences of imprisonment, that he can resume life in society again.

17.  In mitigation for the 1st defendant I was pointed to the fact that the third offence, for which the 1st and 2nd defendants are both convicted, was described as a failed burglary in that nothing was stolen, because the safe could not be removed; and in respect of all the burglaries, that they are burglaries of non-domestic premises, committed at a time when it would be unlikely that anyone would be present at the locations.

18.  Now I turn to the question of the appropriate approach to sentencing.  All three offences are non-domestic burglaries, and the starting point where there are no aggravating or mitigating factors for a person of clear record for a non‑domestic burglary is normally 30 months’ imprisonment.  It is clear that that guideline sentence can be adjusted upwards if there are aggravating circumstances.  Those aggravating circumstances can usually be described as follows.  Firstly, the offence is carefully planned and skilfully executed, involving the use of heavy instruments or equipment; the offence is committed by two or more people; the offences target substantial premises and involve substantial properties; the offender is a professional burglar and not just an opportunist; the offender has previous convictions, particularly previous convictions of a similar nature; and the offender commits multiple offences.

19.  There are three offences in total in this set of offences, and there are different considerations in respect of each defendant and each offence.  I shall deal firstly with the first two offences committed by the 2nd defendant.  They are the first offences in time and are committed in a similar manner, because they involve premises in shopping centres which were secured.  In both cases there was a degree of planning, and equipment was taken along to facilitate either entry into the premises or the removal of the items that were to be taken from the premises, so there was planning and the use of equipment.  In both offences, the offences were committed by two or more people, and in respect of both Charges 1 and 2, I think it can be said that substantial property was gained:  in one case, a safe, with the contents, and in another case, what seem to be quite highly-valued handbags; and in respect of the 2nd defendant on these charges, he has previous convictions of a similar nature.  So at least, as I say, four of the aggravating factors’ features are present in respect of those offences.

20.  In respect of the final offence - that is, the third offence - there are of course, in respect of this offence, again it is an offence involving multiple offenders.  Equipment was obtained and used.  The object was substantial but was unrealised.  The 2nd defendant has previous convictions of a similar nature.  The 1st defendant has convictions of dishonesty.

21.  I need to establish a starting point in respect of each of these offences before I can deal with the sentence.  In respect of Charges 1 and 2 faced by the 2nd defendant, having regard to the aggravating factors present, I consider that in respect of each of those offences, the appropriate starting point is one of 42 months’ imprisonment.  In respect of the third offence faced by the 1st and 2nd defendants, I consider the appropriate starting point is 36 months’ imprisonment, or 3 years’ imprisonment.

22.  After deduction for the plea of guilty of one‑third, this would leave sentences as follows.  On the first charge for the 2nd defendant, a sentence of 28 months’ imprisonment; on the second charge for the 2nd defendant, one of 28 months’ imprisonment; and on the third charge, for both the 1st and 2nd defendants, a sentence of 24 months’ imprisonment; and that deals with the case as against the 1st defendant, who only faces the third charge.

23.  The 2nd defendant faces all three charges, and questions of overall totality of sentence must be considered.  The offences are committed on separate occasions, and so the sentences can be served consecutively.  However, a simple mechanism of addition would lead to an excessive sentence, so the sentences must be adjusted to reach an overall proper totality.

24.  For these three offences, an overall starting point in excess of 5 years’ imprisonment would be appropriate.  What I shall do is as follows.  I shall order that 10 months of the second charge be served consecutively to the first charge, and I shall order that 8 months of the third offence be served consecutively to the first and second offences.  That will lead to an overall total of 46 months’ imprisonment.

25.  I shall also indicate, in respect of the 1st defendant, that the suspended sentence he faces in respect of the offence committed on 20 February 2014 will not be activated.  That sentence has already not been activated on 10 July 2014 and is for an entirely separate offence and separate kind of offending, so I do not think it is appropriate or in the interest of justice to activate the suspended sentence.