HKSAR v. SUEN CHI WAI

DCCC 276/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.276 OF 2012

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Reasons for Sentence

1. The defendant pleaded guilty to 2 counts of burglary and 1 count of theft.

Facts

2. The premises involved in the 2 counts of burglary is a building on Nam Choeng Street in Shamshuipo. The main gate on the ground floor of this building was always opened. Premises 1 in charge 1 is on the 1^st floor and premises 2 in charge 2 is on the 4^th floor. They are both property held by a New Eagle Development Limited.

3. An employee of the management company that managed the properties confirmed that as in February 2011, the main door and iron gate of premises 2 were secure and locked. The same employee also last checked premises 1 on 23^rd July 2011 and confirmed that the window frames were intact and had secured and locked the main door when he left the premises.

4. The defendant was seen by security guards of the building at around 10am on 15^th January 2012 together with another male outside premises 2. One of them was using a hard object of about 4 inches long to prize at the door of the premises. The guards went back to the ground floor of the building and made a report to the Police.

5. About 2-3 minutes later, the male and the defendant, who was carrying some window grilles, appeared at the ground floor. They were intercepted by the guards. The male fled while the defendant told the guards that the grilles were stolen from premises 2.

6. The defendant was then brought back to premises 2. They saw that the main door was prized open and the iron gate left ajar. When they were inside the premises, the defendant suddenly dropped the grilles and pushed the guards away and ran downstairs. The guards gave chase together. The Police later joined the pursuit and the defendant was subsequently subdued.

7. Upon enquiry, the defendant admitted that he had prized open the door of premises 2 with a screwdriver and intended to steal something inside. He also admitted to prizing open the door of premises 1 and stole the window grilles. The defendant said under caution that he stole the window grilles from premises 1 because he needed money.

8. In a subsequent video recorded interview, the defendant admitted under caution that as premises 1 and 2 were unlocked, he had entered them and used a screwdriver to remove the window grilles for sale later. 5 window frames and 5 grilles were missing from premises 1 while the windows in premises 2 were intact.

9. The defendant also confessed to having stolen 5 feet of copper wires from the staircase of a building in Apliu Street on a previous occasion. The copper wires belonged to a tenant of a unit on the 5^th floor of the building. Again, the defendant said he needed money for food and he stole the wires for selling.

Previous convictions

10. The defendant has 17 previous convictions. He was last convicted on 20^th August 2011 for theft and was sentenced to 2 months’ imprisonment. He was released in October 2011. He committed charge 3 about 1 month after his release.

Mitigation

11. The defendant is 47, educated up to primary 1. He is single and unemployed with no fixed abode. He used to work in a shipping company for $400 per day but was laid off in around 2011 and has been unemployed since then. It so happened that the defendant had lost his identity card and had no money. He has not applied for CSSA because of self esteem.

12. The premises were vacant premises, just wanted to go in to see what he could steal. The screwdriver was found by the defendant inside the premises and not brought by him there. It was suggested by Ms. Lee that it was not a well planned scheme.

13. The defendant does not know the other person who had fled.

14. The defendant’s mother is aged 80. He regrets what he had done, causing his mother to have to go to Lai Chi Kok detention centre to visit him. The defendant promises that he will reform himself so as not to further worry his mother. Lastly, Ms. Lee pointed out that the defendant had made frank admission and cooperated with the Police, no one suffered any loss as the window grilles were recovered and the copper wires in charge 3 was worth just a few hundred dollars.

Sentencing cases

15. It is asserted by the prosecution, albeit not strongly, that the premises in question should be categorized as domestic premises. The proper starting point in a case of burglary of domestic premises in the absence of aggravating or mitigating factors is 3 years’ imprisonment[1]. The prosecution rely on the case of HKSAR v Chow Keung, CACC 478/2006 to support their contention that the guideline sentence applies even to domestic premises which have been left vacant for some years.

16. In Chow Keung, the applicant pleaded guilty to, among others, one charge of burglary which was committed at a house in Kowloon Tong which had been left vacant for some years. The applicant stole one t-shirt from this place. A starting point of 3 years’ imprisonment was adopted by the learned trial judge and was left undisturbed by the Court of Appeal.

17. Mr. Alex Wong for the prosecution very fairly referred me to another case that might be of assistance to the defendant.

18. In the case of HKSAR v Chau Man Ying, CACC 439/2011 the Court of Appeal considered that the trial judge was right to take into consideration that the building that had been burgled had been vacant, that it was an opportunistic theft and that the things the burglar found were not of high value. There, although the premises involved was domestic in nature, the learned trial judge adopted a lower starting point of 2 years’ imprisonment after trial. The Court of Appeal, no doubt considering the opportunistic nature of the burglary, decided to set aside that sentence and replaced the sentence to allow for his immediate release.

Sentence

Charge 1 and 2

19. The burglaries took place in day time and there were no occupants in the premises.

20. The defendant’s previous conviction for burglary was back in 1981. His later convictions had mostly been for theft with the occasional possession of dangerous drugs charges. The defendant had been last sent to the DATC for treatment in 2008. That was his third visit to the centre. He had another 2 theft convictions thereafter in 2011. It would appear that the defendant might still be a victim of his drug addiction, compelling him to burgle and steal to try to find money to sustain his addiction.

21. Having heard from parties on the point of whether the burglary sentencing guidelines for domestic premises should apply to ones that have been left vacant for a period of time and having considered the relevant cases, I find that a proper starting point for charges 1 and 2 would be 2 and half years’ imprisonment. There is evidence that the building was under development and could have been vacant. I will grant the defendant the benefit of the doubt on this point.

22. I find however that it was not an opportunistic crime because the defendant together with another prized open the door for entry in order to steal.

23. I have taken into consideration the mitigating circumstances put forward by the defendant but can see nothing to allow me to depart from the usual sentence any further.

Charge 3

24. In relation to the theft charge, I find that the defendant’s previous convictions shows that he is a repeat offender and as such an aggravating factor. Therefore, although the value of the wires stolen are not much, a term of imprisonment is appropriate. I adopt a staring point of 6 months’ imprisonment and reduce it to 4 months upon the defendant’s guilty plea.

Totality

25. Although the defendant had burgled 2 different premises, I find that given the proximity in time and location of the burglaries, the relatively small value of the things stolen, the sentences for both charge 1 and 2 should run concurrently and I so order. The sentence for charge 1 and 2 is therefore that of 20 months’ imprisonment.

26. On the other hand, the theft was committed on a different day and at a different place, there is no connection between the theft and the burglaries. I order that the 4 months of the sentence in charge 3 to be served consecutively to the rest of the sentences. The total sentence is therefore 24 months’ imprisonment.

[1] AG v Lui Kam Chi [1993] 1 HKC 215 and HKSAR v Ng Wai Hing [2003] 2 HKLRD 338