HKSAR v. YU TIN SUN

DCCC880/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 880 OF 2011

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Reasons for Sentence

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1.  Yu Tin-sun, the 2nd defendant on the charge sheet, pleaded guilty before me to one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210.

2.  The particulars of the charge stated that between 14 and 15 April 2011 D2, together with three other persons, entered as trespassers the Kadoorie Farm and Botanic Garden, Lam Kam Road in Tai Po and attempted to steal therein. 

3.  According to the facts as admitted by D2, at the times material to this case the Kadoorie Farm and Botanic Garden (the Farm) was situated on the northern slopes and foothills of Tai Mo Shan in Tai Po, covering over 148 hectares of land.  There were various buildings and structures inside the farm, including a male changing room, breeding units and water treatment system.  Security guards were deployed around the block, the main entrance of the farm was surrounded by a 2 metre high wire mesh fence. 

4.  At around 11.50 pm on 14 April 2001, D2 together with three other persons arrived at the farm in a vehicle.  At least one of them was armed with a tool box.  They entered the farm with intent to steal therein. 

5.  At around 3.30 am, he and the other three burglars were caught by the police, who were laying ambush nearby outside the farm, after a chase.  D2 was found to have a pair of labour gloves in his trousers pocket.

6.  Under caution, D2 admitted that two people asked him and another person to enter the farm to steal.

7.  Investigations by the police revealed that there were damages to various parts of the farm, including the wire net at the east gate and the nylon net protecting a breeding unit which was used to breed turtles.  The window of the male changing room was prised open and there were signs of ransacking therein.  Various burglary-related paraphernalia including gloves, torches, nylon bags, screwdrivers and iron bars not belonging to the farm were found at various locations inside the farm.  However, no property had been reported missing by the farm or any staff member.

Mitigation

8.  D2 is now 39 years old, divorced.  He has a one year old son who is not living with him.  He worked in various trades and earned about HK$6,000 to HK$7,000 per month.  He contributed about $1,000 to $2,000 of his income to support his son.  He also contributed a similar amount to his parents who resided with him. 

9.  He has eight previous convictions but none similar to the present offence.  They were mostly DD related.  I am told that he was last released from prison in February 2010.

Sentence

10.  It is trite law that burglary of non-domestic premises would normally attract a sentence of 2½ years.

11.  In HKSAR v Sim Ka Wing, CACC450/2000, Keith JA at paragraph 9 of the judgment said,

“The conventional starting point of 2½ years’ imprisonment for burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning and thus a degree of premeditation and planning is already built into the conventional starting point. The conventional starting point can be lowered in the case of the opportunistic burglar akin perhaps to the sneak thief who walks into an open office to steal whatever he can find. Likewise, the conventional starting point can be increased in the case of professional criminals who plan the burglaries with meticulous care and steal goods and cash of considerable value.”

12.  Mr Davies submitted that the present case involved a farm.  There was no loss of property and the damage to the property was minimal.  He submitted that the criminality involved in the present case was even less than a burglary involving commercial premises. 

13.  He cited HKSAR v Khan Asif [2010] 1 HKLRD 405 in support of his submissions.  In Khan’s case, there was minimal entry by the applicant to the building “by popping his head in the window for 5 to 6 seconds” and the criminal enterprise was then abandoned.  The Court of Appeal adopted 18 months as the appropriate sentence but at the same time stressing that this is due to the unique circumstances of the case.

14.  The facts are at great variance to the present case.  No assistance could be provided by this case.

15.  The present case involved a non-domestic premises.  Although it is a large farm situated at a remote place in the New Territories, there were tight security measures employed to protect its privacy.  I do not accept that it deserves any less protection under the law when compared with other commercial premises in a building in the urban area. 

16.  It is obvious that the present case involved a certain degree of planning.  The group engaged a vehicle and armed with various burglary-associated tools before embarking on the criminal enterprise.  Damages were done to various parts of the farm.  It was carried out in the middle of the night.  However, it is also accepted that no property had actually been stolen and that the damages caused were of a minor nature.  The previous convictions of the 2nd defendant did not show that he was a professional burglar or in it habitually.

17.  Bearing in mind all the above factors including the background of the 2nd defendant, I see no reason to depart from the normal starting point for similar offences. 

18.  I adopt 30 months as the starting point. The only mitigating factor is the guilty plea.  I give D2 the normal one-third discount. 

19.  The 2nd defendant is sentenced to 20 months’ imprisonment.