HKSAR v. YUYUN

DCCC 177/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 177 OF 2014

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REASONS FOR SENTENCE

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Introduction

1. The defendant pleaded guilty to one charge of burglary, contrary to s 11(1)(a) and (4) of the Theft Ordinance, Cap 210.  She admitted that on 27 December 2013 she entered Flat E, 11th Floor, Bamboo Mansions (Site 12), Whampoa Garden, Hung Hom, Kowloon ("the subject premises") as a trespasser with intent to steal therein.

Summary of facts

2.  Shortly stated, on 27 December 2013, PW1 (the owner of the subject premises) left his flat at about 10:15 am.  Although he had locked his room and the iron gate of the subject premises before departing, the kitchen window was left ajar with a 2-cm gap.  About half an hour later when PW1 returned, to his surprise he found the defendant inside his home.  She was in fact the domestic helper of the adjacent flat which was Flat D.  The defendant made up a lame excuse to PW1 that she had been invited in by an unknown male who left after she had entered.  Police were called.  The defendant later admitted under caution that she entered the subject premises from Flat D through the kitchen windows of the two flats with the help of a stool.  She also claimed, falsely, that she did that because she wanted to see the engagement of ring of friend.  PW1 confirmed that nothing had been stolen from his flat.  There was no sign of ransacking.  

Antecedent

3.  The defendant is aged 35.  She is married with two sons, aged 17 and 11 respectively.  She was educated up to Form 3 in Indonesia.  She first came to Hong Kong to work as a domestic helper in 2006 and started to work for her last employer since 2009.  She has a clear record in Hong Kong. 

Mitigation

4.  Mr Yeung, who represents the defendant, stressed in mitigation that the defendant has entered a timely plea and that she had caused no property loss to PW1.  Mr Yeung also submitted a mitigation letter from the defendant’s last employer in which she is praised as a faithful and helpful maid.  It is also said in the letter that the defendant’s mother is seriously ill in Indonesian and that the defendant is having problems with her husband because of her long absence from home. 

Sentencing considerations

5.  It is well-established that burglary of domestic premises, which the subject premises is one, attracts a sentence of 3 years' imprisonment after trial even for a first offender of full age: Attorney General v Lui Kam Chi [2003] 1 HKC 215.  Family circumstances and financial problems cannot usually be accepted for reducing the sentence for a serious offence such as this: Attorney General v Yan Chun Fong [2002] 4 HKC 685.  This sentencing guideline, however, is not a strait-jacket.  As said by the Court of Appeal in HKSAR v Law Tin Yam (CACC 258/2010), sentencing guidelines must never obscure the individual facts and justice of a case.  In case of an opportunistic burglar, a lower starting point can be adopted.

6.  In HKSAR v Cheung To Ming [2006] 2 HKLRD 259 the Court of Appeal quashed a sentence of 20 months’ imprisonment imposed in respect of a burglary of non-domestic premises, the Mai Po Marshes Wildlife Education Centre and Nature Reserve, which the appellant, a hungry illegal immigrant, had entered through an open door and stolen 2 packets of noodles which he consumed on the premises.  A sentence of 15 months’ imprisonment for remaining in Hong Kong without authority after having landed unlawfully, which was ordered to be served consecutively to the sentence imposed for the burglary, was not challenged.  Describing the appellant as a “sneak thief” who was able to walk into the premises at some time after one or more others had broken into it earlier, the Court of Appeal adopted a starting point for sentence of 18 months’ imprisonment and, affording the appellant a one third discount for his plea of guilty, imposed a sentence of 12 months’ imprisonment for that offence.

7.  In HKSAR v Law Tin Yam, ante, and HKSAR v Kwok Wing Kam (CACC 394/2010), the Court of Appeal quashed sentences of 16 months and 12 months’ imprisonment respectively for single charges of burglary and, having taken a starting point for sentence of 15 months’ imprisonment, imposed sentences of 10 months’ imprisonment on the respective appellants.  In the former case, the appellant intruded into the cubicle of a neighbour, in his absence out of Hong Kong, and stolen a packet of cigarettes.  There had been some ransacking.  In the later case, the appellant, who was unable to sleep, had used a plastic card to force the lock on the door to a neighbour’s premises, entered and stolen a packet of lemon tea from the refrigerator.  There was no sign of ransacking.  It was a common feature of the two cases that the promises had been left unattended and unlocked.  

Sentence

8.  In the present case, in my view the defendant can be regarded as an opportunistic burglar.  She was able to enter the subject premises because PW1 had left his kitchen window open.  Mr Yeung frankly accepted that what the defendant said under caution about wanting to see the engagement ring of a friend was false and that the defendant climbed into the subject premises to see if there was anything to steal and she knew that the subject premises would be left unattended during that time of the day.  That said, the present case reveals a more serious degree of intrusion than those in HKSAR v Law Tin Yam and HKSAR v Kwok Wing Kam.  Furthermore, whilst it was true that PW1 had suffered no property loss and that there was no sign of ransacking, I cannot ignore the fact that the defendant was caught in the act because of the sudden return of PW1.  In all the circumstances, I consider that the appropriate starting point of the offence is one of 18 months’ imprisonment.

9.  Mr Yeung, I am sure, has said all he could for the defendant.  However, I am of the view that the only mitigation factor for the defendant is her timely plea.  The element of good character is normally taken as being included in the one-third discount given for a timely plea: Secretary for Justice v Tso Tze Kin [2004] 2 HKC 139.  After deducting the discount for plea, the defendant is sentenced to 12 months’ imprisonment.