HKSAR v. TSOI MO HING AND ANOTHER

DCCC 576/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 576 OF 2012

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BETWEEN

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Reasons for Sentence

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Introduction

1.  Both defendants pleaded guilty to one count of attempted burglary; the premises in question were a dwelling which situated on the 4^th floor of a residential building on Sau Chuk Yuen Road, Kowloon City.

2.  Mr. Law who lived there was out at the time when the offence was committed. Sometime in the afternoon on the day in question, the defendants were seen by police officers alighting from a taxi and entering the building, they emerged from the building one after another some 45 minutes later but were stopped for questioning by the officers. In one of the trousers pockets of D2, the police found a pair of gloves. In the meantime, other officers conducted a check of the building and discovered some damage to Mr. Law’s flat- the metal door was prised open and the wooden door damaged. Mr. Law later in the day confirmed that nothing was missing but the cost of repair amounting to $7,500.00.

3.  In the subsequent interviews with the police, D1 admitted using a crowbar found nearby to prise open the metal door but failed to enter the flat, whilst D2 stated that he had agreed with D1 to burgle and acted as a lookout. 

Mitigation

4.  D1, aged 37, has 30 previous convictions- 4 of which are burglary (in 1995), one conspiracy to commit burglary (in 2006), and a few other dishonesty offences.

5.  The court was told in mitigation D1’s father was injured seriously in a car accident recently, the burden of caring for the father fell on the defendant because his only brother whose health was not so good either-that, it was submitted, explained why he committed the present offence some 6 years after his last conviction involving dishonesty.

6.  Counsel for D1 submitted the offence was committed out of momentary greed. The defendants only brought along gloves but not the crowbar which was found near the crime scene. It was stressed that no one was frightened by the act of the defendant for the occupant was out at the time and nothing was stolen in the end.

7.  As far as D2 is concerned, he, aged 38, has 10 previous convictions one of which is attempted burglary for which he was sentenced to 9 months imprisonment in 1996.

8.  A letter from a missionary director of a Baptist Church praised D2 as a person with a sense of justice for his good deed in preventing others who were extorting money from the church.

9.  It was submitted by counsel for D2 that the role D2 played was a minor one- he only acted as a lookout, no heavy equipment was used, and nobody was alarmed as a result. Not only did he plead guilty before this court, but he also frankly told the police everything about the crime upon his arrest.

10.  Both defence counsel urged this court to take the usual starting point of 3 years in view of the absence of aggravating factors.

Reasons

11.  There are sentencing guidelines for the offence of burglary- for domestic premises, the term for consideration is one of 3 years in the absence of aggravating features.

12.  Section 159J(1)(b) of the Crimes Ordinance provides, “A person guilty by virtue of section 159G of attempting to commit an offence shall- if the offence attempted is indictable……………….., be liable on conviction on indictment to any penalty to which he would have been liable on conviction on indictment of that offence.” In other words, the guidelines for burglary apply equally to the case of attempted burglary.

13.  In Khan Asif CACC 83/2009, the appellant, with the help of an accomplice, climbed onto the windowsill of a rice shop from an alley and popped his head into the window in the middle of the night, was convicted after trial of burglary and sentenced to a term of 30 months. In allowing the appeal on sentence (30 months reduced to 18 months), the appellate court was of the view that the sentence should proceed on the basis that there was minimal entry into the premises for the purpose of stealing therein if there was anything worth stealing and that it was decided then to abandon the escapade rather than on the basis that but for the advent of the passerby in the street, they would have pursued their entry into the premises and have taken away goods.

14.  The Court of appeal in Asif made it clear that the departure from the usual guidelines was due to somewhat unusual facts of the case, and it was not to be taken as an approach to be adopted simply because in a particular event goods are not in fact stolen.

15.  Though in the instant case, it was not clear why they came back out, the evidence showed that they had used a crowbar trying to gain entry to the premises, and damage was done to the metal as well as the wooden doors; clearly that went on for quite some time (police saw them again after 45 minutes) - had it not been for the method they used, they could have gone inside- clearly they had every intention to go inside to steal. The situation could not be said to be the same as that of the case of Asif- a case of abandoning the escapade, and for this reason I am not prepared to take the lenient view as expressed in Asif.

16.  Moreover, there are aggravating features in the present case in that they were acting in concert as opposed to a lone offender, and had used tools damaging the premises in the commission of the offence.

17.  Taking into account all the mitigation put forward, and the facts of the case, I take 3 years as a starting point; as for the aggravating features mentioned above, I add 3 months on top. The starting point is therefore increased to one of 3 years and 3 months which is reduced by 1/3 to reflect their pleas, there being no reason for further reduction, and thus each defendant is sentenced to a term of 26 months imprisonment.

Dated this 25^th September 2012