HKSAR v. YEUNG KWAI WA

DCCC 906/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 906 OF 2014

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REASONS FOR SENTENCE

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1.  The defendant (male) (aged 41) appeared before me this morning and pleaded guilty to a single charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.  The particulars of offence avers that the defendant on 8 September 2014 in Hong Kong having entered as a trespasser part of a building known as the car park of Pui Kiu Middle School, No 190 Tin Hau Temple Road, North Point, attempted to steal therein.

Facts

3.  According to the Summary of Facts, at about 1 am on 8 September 2014, inside the car park of Pui Kiu Middle School at No 190 Tin Hau Temple Road, North Point, Hong Kong, the defendant was discovered by the owner of a private car HZ 2221 (PW1) which was parked at the car park at the basement level.

4.  At that time, PW1, a teacher who lived at the staff quarters of the school, went to his car to take a compact disc.  He saw the defendant standing by the driver’s seat of his car.  The defendant was at that time bending forward and was holding a bundle of keys in his right hand.  When the defendant found that PW1 was approaching him, he looked up.  PW1 recognised that defendant was a complete stranger to him and he began to question the defendant.  The defendant however made no reply.

5.  The case was immediately reported to the police. 

6.  The defendant had admitted to the police officers later that he climbed the flower bed to enter into the school premises to steal and that he went to the car park of the school and saw the private car.  Then he used his home keys to try to open the car door to see if there was anything valuable in the car.  The car door could not be prised open and as a result, he picked up a wooden pole to try to prise the car door. 

7.  Defendant was then arrested and under caution he repeated the same explanation to the police. 

8.  As a result of the search on the defendant, a bundle of keys was found in his front right trouser pocket.  The keys were slightly bent.  A wooden pole of about 3 feet long was found on the ground beside PW1’s vehicle.  Prising marks were found at the door of the driver’s seat, keyhole as well as the glasses of PW1’s car.  The estimated cost of repair was about $4,000, according to PW1.

9.  Various CCTV footage of the school were also seized by the police which showed the activities of the defendant at the time of the offence.

Criminal records and the antecedents of the defendant

10.  The defendant had in the past 11 previous criminal records with one similar burglary record which was in 2012 at the District Court where he was sentenced to 2 years’ imprisonment.  There are also a number of offences relating to dishonesty involving, as it were, attempted theft in 1999, theft in 2006, one obtaining services by deception and one theft offence, both in 2009.

11.  Defendant had attained a secondary Form 2 level.  According to the antecedent statement, he started working at the age of 15 between 1988 to 1991 as a delivery man and also from 1992 to about 3 or 4 months before his arrest as a hair saloon assistant. 

Mitigation

12.  According to Mr Mak, counsel representing the defendant, the defendant is a divorcee and his marriage has lasted for 3 to 4 years and the couple divorced in 2000.  They have no children.  At the time of offence, the defendant had a good girlfriend.  After the arrest, the defendant was remanded in the custody since and the girlfriend had decided to leave the defendant.

13.  The defendant has been living together with his mother and also the brothers but the family members had not paid any visit to him during his present remand.

14.  In mitigation, Mr Mak had identified that the strongest mitigating factor for the defendant is his plea of guilty and his co-operation with the police.  Mr Mak also submitted to the court the authority of HKSAR v Cheng Wai Kai CACC 338/2007.  In Cheng Wai Kai, at paragraph 15, the Court of Appeal had identified a number of aggravating factors in burglary cases.

15.  According to the Court of Appeal, the starting point can be adjusted upwards, if there are aggravating circumstances such as: (1) the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous conviction of similar nature, and (6) the offender commits multiple offences.

16.  After going through the list of aggravating circumstances, Mr Mak submitted that the court should only increase the sentence of the defendant by the fact that the defendant has previous convictions.  Even so, Mr Mak submitted that the court perhaps should only increase by 1 or 2 months’ imprisonment.

17.  Mr Mak stressed the fact that the defendant did not use any violence during the course of the offence and he did not attempt to flee away upon discovery by PW1 and the security guard but just standing there in the car park waiting for the arrival of the police.  During the course of the investigation, the defendant has been very co-operative. 

18.  All in all, Mr Mak submitted that this defendant was very foolish and he just committed the offence out of greed.  Because of the financial condition of the defendant, he could only offer $500 for compensation. 

Sentencing considerations

19.  In sentencing the defendant, I took into account the facts of the case, the criminal records and the antecedents of the defendant, the mitigation put forward as well as the authorities that have been submitted. 

20.  The present case is a burglary involving a school premises.   The defendant did not enter into the school building itself.  Rather, he targeted on a private vehicle belonging to a staff of the school which was parked in the car park of the school premises. 

21.  The proper starting point for sentence in a case of burglary of non-domestic premises is 30 months’ imprisonment (see R v Wong Man unreported, CACC 372/1992). 

22.  I agree with the submission by Mr Mak that among all the aggravating circumstances which has been identified in Cheng Wai Kai, the only relevant circumstance or factor which was fallen to be considered for increase of sentence is the fact that the defendant has previous convictions, particularly previous conviction of burglary.

23.  The defendant only made use of a bundle of keys carried by himself and he just picked up a wooden pole on the ground of the school premises when the bundle of keys failed to prise open the vehicle.

24.  This offence was committed by the defendant acting on his own and the defendant did not also attempt to gain entry into the school building which presumably will have more valuable properties such as computers or overhead projectors, for example.  To this extent, I would not categorise that the defendant is a professional burglar in this offence.

25.  In HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, the Court of Appeal said the court clearly has a duty to increase the sentence because the defendant has past similar records so as to deter the defendant from committing this offence again and also to protect the public.

26.  I bear in mind that the defendant had only one previous burglary record.  I therefore decide to increase the starting point from 30 months by only 3 months to 33 months. 

27.  The defendant pleaded guilty for which he would be entitled to a full one-third discount. 

28.  For this offence, the defendant therefore has to go to prison for a term of 22 months. 

29.  Lastly, on the topic of compensation.  I was informed by the prosecution that since the offence, PW1 had not yet repaired his vehicle.  The reason offered by PW1 was that he would like to wait for the compensation by the defendant and he did not want to use his own money. 

30.  While I have some sympathy for that, the hard fact remains that as a result, the court was not presented with any concrete facts or evidence as to the actual costs of repair.  In the circumstances, I would only make a compensation order for $2,500.

31.  I understand the defendant has been unemployed in the 3 or 4 months before the arrest.  At the time of arrest, he had only with him some $30 odd with him.  Bearing in mind the sentence that I have passed, I will order that the compensation of $2,500 to be made on or before 8 September 2016 which I believe would give him a couple of months’ time after his discharge from the prison for the present offence in order to satisfy this compensation order.