HKSAR v. YU KIN SAN

DCCC 609/2019

[2020] HKDC 534

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 609 OF 2019

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two charges of theft and two charges of burglary.

2.  The thefts were thefts from hawker stalls that sold telephone cards and were committed on 10 and 14 January.  In both offences, the cards were secured in iron cabinets, usually with a padlock.  The padlocks were broken.  In Charge 1, the value of the cards stolen, some 30 cards stolen to the value of $2,100, and in Charge 2 a thousand cards were stolen.  They are valued at $68,000.  In the 1st charge, the defendant on 18 and 19 January admitted that theft.  He said he used a plier and assisted a female in doing this.  In respect of Charge 2, he admitted on that day going with a female and using cutting pliers to open the cabinet where the telephone cards were kept.

3.  The burglaries were respectively committed between -- the first between 1 and 11 February - that is Charge 3 - and in Charge 4 on 29 March. 

4.  The burglary in Charge 3 is a residential premises in Sham Shui Po.  The premises had been secured with a metal gate and a metal chain.  The chain was found to have disappeared and the door was open. Jewellery was stolen, bracelets valued at 9,200 and 13,800, which would be $23,000 worth.  The defendant’s fingerprint was found in the premises. However, the defendant denied committing this offence.

5.  The final burglary was committed in a commercial or non-residential premises in Cheung Sha Wan.  Again, that premise was secured with a metal gate and a rear door.  The rear door was found to be prised open. Some cash in a cabinet of $1,000 was found -- the cabinet was in fact missing. The defendant made admissions in respect of this burglary.  He said he had been asked by someone else, another man, to commit the burglary, and he had gone along on the 29th with that person and they had gone in and ransacked the premises, so that would make this a joint enterprise burglary.

6.  The defendant’s antecedents show him to be currently -- when the antecedents were taken to be 49 years old.  He is married, has a young daughter who is aged 14, but they, I understand, reside on the Mainland.  He had been working as a cleaner. 

7.  The defendant has previous convictions of a similar nature.  He has one offence of attempted burglary in 2017, which he committed, which he was sentenced to 2 years’ imprisonment, and a number of offences of imprisonment from 2014 to 2018, for which he has been sentenced to terms of imprisonment, in 2018 to a sentence of 8 months’ imprisonment.

8.  The defendant, in mitigation, prays in aid the fact that he made full admissions to the 1st, 2nd and 4th charges, and, in respect of those charges, it is said his confession provides the only evidence.  There was a CCTV recording in respect of 29 March, but the defendant has identified himself in respect of that matter, and the defendant asks that I take that into account when considering the overall sentence which should be passed in respect of the defendant.

9.  In terms of the aggravating factors in respect of these offences, in respect of the theft, the aggravating factor will of course be the defendant’s previous convictions for similar offence.  In respect of the burglary, one of the burglaries was a joint enterprise burglary, which will be an aggravating factor in itself, and, in respect of both burglaries, the defendant has a previous conviction for the same offence.

10.  Turning to the requisite starting point for sentence, there is no defined starting point or guideline starting point for sentence for the theft cases.  In respect of the burglary cases, a residential burglary committed, the sentence after trial for a person of clear record who pleads not guilty would be 36 months’ imprisonment and, in respect of a non-residential burglary, that starting point would be 30 months’ imprisonment.

11.  At the end of the case, I will of course have to make an overall total calculation of the sentence.  There are four offences committed over some three months and adjustments will have to be made to achieve a fair overall total sentence.

12.  I will turn to the theft offences first, Charges 1 and 2.  They involve breaking in to hawker stalls which had been secured as much as they could be, given they are out on the street.  In respect of each of the starting points, I determine I will increase those by 3 months to reflect the defendant’s previous convictions and that aggravating factor.

13.  In respect of Charge 1, the final starting point for sentence in respect of Charge 1, after increasing for the aggravating factor, is one of 15 months’ imprisonment.  I will deduct that by one-third for the defendant’s plea of guilty, leaving a sentence on Charge 1 of 10 months’ imprisonment. 

14.  On Charge 2, this is a more substantial theft. I will take an overall starting point for sentence, after taking into account the aggravating factor, of 18 months’ imprisonment, reduced to 12 months’ imprisonment for the defendant’s plea of guilty.

15.  The 3rd charge is a residential burglary with a normal starting point of 36 months’ imprisonment.  Taking into account the one aggravating factor in that case, which is the defendant’s previous conviction for burglary, that would be a starting point of 39 months’ imprisonment, reduced to 26 months’ imprisonment for his plea of guilty. 

16.  The 4th charge is a non-residential burglary, with a starting point of 30 months’ imprisonment.  There are two aggravating factors:  the fact that it is a joint enterprise and, secondly, that there is a previous conviction.  That leaves a starting point of 36 months’ imprisonment after deduction for plea of guilty.  That leads to a sentence of 24 months’ imprisonment.

17.  The court must now determine what the overall sentence should be.  What I will do is order that the 1st and 2nd charges run concurrently to each other, and the 3rd and 4th charges are served concurrently to each other.  Some element of the 1st and 2nd charges must, however, run consecutively to the 3rd and 4th charges.  They are separate offences committed at separate times.  I would have determined that 8 months should run consecutively.  However, I must also take into account that in the 1st, 2nd and 4th charges, the defendant has provided assistance to the police and that is always to be encouraged. 

18.  So from that 8 months I will deduct 2 months and so I will order that 6 months of Charges 1 and 2 be served consecutively to Charges 3 and 4, which leads to an overall sentence of 32 months’ imprisonment.