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DCCC 848/2019
[2020] HKDC 332
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 848 OF 2019
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| Present: |
Mr Yaddy Cheung, solicitor on fiat, for HKSAR
Ms Yanky Lam instructed by Stephen Lo & P.Y. Tse, assigned by the Director of Legal Aid, for the defendant |
| Offences: |
Burglary (入屋犯法罪) |
REASONS FOR SENTENCE
1. The defendant pleads guilty to four charges of burglary, contrary to section 11 of the Theft Ordinance[1].
2. Full particulars of the offences are set out in the facts admitted by the defendant today.
3. In summary between 26 March 2019 and 10 April 2019 the defendant burgled one restaurant, one café, one residential premises and one laundry. Black and white photographs relating to the four burglaries have been submitted to court.
4. The defendant was arrested for the offences subject of charges 2 and 3 on 11 April 2019 and for the offences subject of charges 1 and 4 on 12 April 2019[2].
Charge 1
5. CCTV captured two males entering the “Rosa Bridge” restaurant on Sai Yeung Choi Street South in Mong Kok at about 5:23 a.m. on 26 March 2019 and ransacking the restaurant. A cash box containing about $10,000, two mobile phones and a television were stolen in the burglary.
6. In a video recorded interview, the defendant admitted, inter alia, that he was one of the two persons seen in the CCTV and that he burgled the restaurant with a man named Wong Kwok Tung and a person known as “Ah Wai”.
Charge 2
7. At 10:30 p.m. on 28 March Mr Lee, the owner of the “Buddy Café” on Castle Peak Road in Cheung Sha Wan, left the café securely locking the front and back door and the inner backdoor. At 6:30 a.m the next morning Mr Lee discovered the lock on the inner backdoor had been prized open and $5,000 stolen from the cashier machine.
8. CCTV captured the defendant at 2:31 a.m. on 29 March 2019 climbing onto the patio and then entering the café and stealing $5,000 cash from the cashier machine.
9. In a video recorded interview, the defendant admitted, inter alia, that he was the person seen in the CCTV and that he entered the café and stole the cash.
Charge 3
10. At 11:30 p.m. on 5 April 2019 Ms Li and Mr Yung, the owners of Room A, 1/F, Ka On Building, No. 27-29 Poplar Street in Sham Shui Po, went to bed leaving the toilet window open for ventilation. At 6:45 the next morning Ms Li discovered things in the toilet had been moved and their personal belongings were missing.
11. The stolen property including two iPhones, two wallets, about $3,000 cash, two Hong Kong identity cards, five credit cards, one Home Visit Permit, one driving licence, one Octopus card, one company card and one betting card were missing.
12. On 10 April 2019 the owners were informed that the stolen credit cards had been used in the total sum of $4,223.60. Mr Yung was later informed that his personal particulars had been used to obtain two credit cards one of which was used on 18 April 2019 for a transaction in the sum of $15,000.
13. CCTV in the room captured the defendant walking out of the toilet at 1:00 a.m. and taking various things from the living room and leaving via the main door.
14. When D4 was arrested he was found in possession of Ms Li’s wallet. In a video recorded interview, the defendant admitted, inter alia, that he was the person seen in the CCTV and that he climbed up the water pipes, entered via the open toilet window and stole the items in the room.
Charge 4
15. Between 9 p.m. on 9 April 2019 and 8 a.m. on 10 April 2019 the roller shutter box of the Fai Mei Laundry shop on Kok Cheung Street in Mong Kok was prized open and the cashier machine containing cash of $800 was stolen.
16. In a video recorded interview, the defendant admitted, inter alia, that he picked up a screwdriver, prized open the roller shutter control box and stole the cashier machine.
Mitigation
17. In passing sentence, I have carefully considered the oral and written submissions of Ms Lam, including that the defendant suffers from epilepsy; that he committed the offences due to financial difficulty and that he cooperated with the police[3].
18. I take into account that although the defendant has previous convictions he has no convictions for burglary or for offences of dishonesty.
Starting point
19. The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment and for burglary of commercial premises is 2 years and 6 months’ imprisonment.
20. Ms Lam submits the burglaries were opportunistic[4]. I do not agree. Three persons were involved in the first burglary. In the second burglary the defendant climbed over a metal railing to access the inner backdoor of the café[5]. The defendant climbed the water pipes to access the toilet window in the third burglary. The defendant prized open the roller shutter box in the fourth burglary.
21. The four burglaries were committed in the early hours of the morning when the defendant was clearly looking for premises in which he could burgle and steal cash.
22. I am satisfied the proper starting point after trial on each of charges 1, 2 and 4 is 2 years and 6 months’ imprisonment and on charge 3 is 3 years’ imprisonment.
Aggravating features
23. The commission of burglary by two or more persons is an aggravating feature of sentence[6]. The first burglary was committed by three burglars. I enhance the starting point on charge 1 by 3 months to 2 years and 9 months’ imprisonment.
24. Giving the defendant full credit for his plea of guilty reduces the sentence to 1 year and 10 months’ imprisonment.
25. The third burglary was of occupied premises and took place in the early hours of the morning when occupants were highly likely to be at home[7]. Fortunately, there was no confrontation. I enhance the starting point on charge 3 by 3 months’ imprisonment to 3 years and 3 months’ imprisonment.
26. Giving the defendant full credit for his plea of guilty reduces the sentence to 2 years and 2 months’ imprisonment.
27. Giving the defendant full credit for his pleas of guilty on charges 2 and 4 reduces the sentence on each charge to 1 year and 8 months’ imprisonment.
Totality
28. Where offences are committed in different premises against different victims on different dates, consecutive sentences should be imposed, subject to the totality principle[8].
29. Mr Cheung confirms that the only evidence on charge 4 is the confession of the defendant. On charges 1 & 2 apart from the confession there is CCTV footage. The defendant’s face cannot be seen in the black and white photographs of the first burglary. In respect of the second burglary the black and white photographs show the face of the defendant, albeit part of his face is covered by a mask.
30. In HKSAR v Ma Ming[9] the Court of Appeal held that the fact that a frank confession provides the only evidence which supports the charge did not entitle the defendant to a further discount over and above the one-third discount. The court did however say that when considering the totality of the sentence a court, in exercising its discretion, can take into account the fact that the frank confession of a defendant provides the only evidence to support the charge.
31. Taking into account all the circumstances of the four burglaries including that the burglaries were committed over a period of sixteen days; the total value of the stolen property and the defendant’s co-operation with the police,I am satisfied that a total sentence of 3 years and 2 months’ imprisonment properly reflects the defendant’s criminality on the four charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[10].
Sentence
32. The defendant is convicted and sentenced as follows:
Charge 3 – 2 years and 2 months’ imprisonment;
Charge 1 – 1 year and 10 months’ imprisonment with 6 months consecutive and 16 months concurrent to charge 3;
Charge 2 – 1 year and 8 months’ imprisonment with 4 months consecutive and 16 months concurrent to charges 1 & 3; and
Charge 4 – 1 year and 8 months’ imprisonment with 2 months consecutive and 18 months concurrent to charges 1, 2 & 3;
The total sentence to be served by the defendant is 3 years and 2 months’ imprisonment.
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(D. J. DUFTON) |
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District Judge |
[1] Cap 210.
[2] See §§4, 9, 15 & 18 of the summary of facts and §10 of the defendant’s mitigation submission. Mr Cheung explained that police investigation revealed the defendant was suspected of committing charges 2 & 3. The police therefore obtained a warrant to search the defendant’s residence. The defendant was arrested for charges 2 & 3 when the police executed the search warrant.
[3] See §§7, 8 & 10-14 of the defendant’s mitigation submission.
[4] See §15 of the defendant’s mitigation submission.
[5] In the video recorded interview, the defendant claimed he saw the backdoor was open. Mr Cheung submitted a further four colour photographs of the café. Photograph numbered 16 shows the rear lane where the backdoor of the café was situated. Mr Cheung explained that the back door of the café was a roller shutter and remained closed. The defendant climbed over the railings shown in the photograph to access the inner backdoor and the café. The black and white photograph number 1 shows the defendant climbing into the café and photograph 6 shows the defendant leaving via the same way he entered. Ms Lam said the defendant accepted the explanation given by Mr Cheung and explained that after the defendant climbed over the railings he saw the inner backdoor was not securely locked.
[6] See HKSAR v Cheng Wai Kai CACC 338/2007 at §15.
[7] See HKSAR v Tong Fuk Sing [1999] 3 HKC 332 and HKSAR v Song Jianhua CACC 362/2006.
[8] See for example Attorney general v Lui Kam Chi [1993] 1 HKC 215.
[9] [2013] 1 HKLRD 813 at §32.
[10] See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 and HKSAR v Pau King Kong [2013] 3 HKLRD 676.
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