HKSAR v. LAW TSZ YIN

DCCC57/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 57 OF 2012

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  Defendant, you have pleaded guilty to one offence of burglary, contrary to sections 11(1)(b) and (4) of the Theft Ordinance, Cap. 210, to one offence of assault occasioning actual bodily harm contrary to section 39 of the Offences Against the Person Ordinance, Cap. 212, and to one offence of criminal damage, contrary to section 60/1 of the Crimes Ordinance, Cap. 200. You admitted the brief facts, and I convicted you.

2.  The facts tell me the following.  At around 2.00 pm, on 19 December last, Lau Ming-shing, PW1, who was aged 79, arrived at his daughter’s two storey house at 21 Tai Shan Central, Yung Shue Wan, Lamma Island, to wait for Ng Siu-ling, PW2, who is a decoration worker.  PW1 heard the sound of searching coming from the upstairs.  PW2 arrived and PW1 told him what he had heard.  While PW2 checked the premises, through a window on the ground floor they saw you, carrying a female’s handbag, ran out from the side entrance of the ground floor.  PW2 tried to intercept you, but you picked up a triangular metal frame from the floor to attack him.  PW2 dodged the attack and you both fell to the ground.  PW2 called the police.  You used the metal frame to attack PW1 who used his hands to defend himself, but he was injured. 

3.  PW1 retreated into the premises and locked the door behind him. 

Criminal damage - Charge 3

4.  You then dropped the metal frame, which was P1, and picked up PW1’s wooden crutch from the floor and threw it at a window in the ground floor of the premises.  The window smashed and you entered the premises by the broken window.  A short while later you rushed out from the premises with the handbag and another brown bag.  Your neck was bleeding and you were injured by the broken glass caused by your damage to the window. You were then subdued by PW2.

5.  At around 2.10 pm the police arrived. PC4110 found your fingertips were all wrapped in adhesive tape.  He arrested you for burglary and wounding.

6.  Under caution you admitted that you burgled the premises out of greed and asked for a chance.  You further claimed that you attacked PW1 out of self defence. 

7.  At 4.53 pm you were brought to the Accident & Emergency Department of Queen Mary Hospital.  There PC4110 explained to you the contents of POL.153 and asked you to read it to yourself.  You said you understood but you were unable to sign as your fingers were still wrapped in adhesive tape and the tips were paralysed.  You said you could sign after removal of the tape, and you did so at 5.10 pm.

8.  PW1 went to the hospital and was found to have a 5 centimetre laceration on his left hand, two small lacerations on his right hand and bruising and swelling to his elbow.  He was discharged from hospital after three days.

9.  The contents of the bags were as follows.  The brown bag contents were, first: a screwdriver; a spanner; a pair of scissors; a role of adhesive tape; a brown wallet, inside which was your ID card, a home visit permit, two Construction Council permits; $140 and various cards and papers. 

10.  The handbag contained $1,0242.30; 596.89 Renminbi; a BOC foreign currency certificate for $116.70; 2860 Baht; US$4; 20 Euros; 300 Rupiah; 4 Singapore dollars; a $100; 7 Malaysian dollars; 220 Philippines currency; 35 coins, the value of which are unknown; two gold/silver Buddha pendants; two silver rings; five earrings; one copper bracelet, one ornament, a mobile phone, a black Nike jacket; and two golden necklaces.

11.  On 20 December of 2011, SPC2234 took a video-recorded interview from you, and you admitted the following:

(i) you brought the brown bag with the tools, including the screwdriver, to prize open the window, and the adhesive tape to wrap your fingertips to avoid leaving fingerprints at the premises burgled;

(ii) you stole the handbag from there and used it to store other stolen property, including cash, mobile phone, jewellery and foreign currency stolen;

(iii) you used the metal frame to attack PW1;

(iv) when you were about to leave the premises you realised you had left the brown bag in the premises so you wanted to return to get it back;

(v) seeing PW1 retreat inside the premises and lock the door, you picked up the PW1’s crutch and smashed the window to get the brown bag back;

(vi) as you hurt yourself on the glass of the window you surrendered;

(vii) in relation to the attack on PW1 you claimed PW2 sat on you and used a screwdriver to attack you, whilst PW1 used a 6 foot metal pipe to attack you. Therefore you picked up the metal frame to resist the attack.

12.  PW1’s daughter confirmed that the handbag was hers and the contents belonged to her and her sister.  At the time you entered the premises you were, in fact, a trespasser. 

13.  Mr Lau, on behalf of the prosecution, cited 16 previous convictions, on ten occasions 12 being similar.  You admitted to these convictions, although perusal of the record seems to suggest that the actual number of burglaries committed in the past total 20.  I therefore invite Mr Lee just to check that, and if I am incorrect to draw that to my attention.

14.  On your behalf Mr Lee entered mitigation.  He accepted the contents of the antecedent statement, save as to your address. You said you were actually residing at a friend’s home.  Referring to your personal details, you said you were 27 years old, married, with a young son. Your wife and son reside in the mainland where they are supported by your wife’s family due to the lengthy periods of imprisonment that you have undergone.  You said you are poorly educated, merely to Primary 6.  You have had various jobs but found them difficult to maintain.  Your intention was to work in the construction industry but you lacked funds to pay for the necessary qualifications.  You said your intention now is, upon release, to use part of the $6,000 provided by the Hong Kong Government to obtain the necessary qualifications and in the future turn over a new leaf. 

15.  The strong suggestion was that these offences occurred out of your poverty.  On the day of the offence you had gone to your father’s home and, seeing the window of the premises opposite open, you resolved to burgle those premises.  You realised no one was at home, and it was in the afternoon.  You acted alone. 

16.  Mr Lee realistically accepted that the normal starting point of 3 years would be enhanced due to the many previous convictions for burglary.  He said the assault occasioning actual bodily harm occurred when you yourself were being assaulted, but you accepted that the force used was excessive.  He asked me to find that the injuries sustained by the victim was not serious and he had made a full recovery.  The criminal damage was committed in order to retrieve your property.

17.  Mr Lee urged me to be lenient in view of your plea of guilty, that nothing was actually taken, and you had decided now to turn over a new leaf. 

18.  I turn now to the sentence.  As I have previously referred to this, according to my calculation you have 20 previous convictions for burglary.  That is an appalling record.  That, in my opinion, places you in the recidivist class and calls for a higher starting point than the normal.

19.  In mitigation, I do accept that nothing was, in fact, lost.  The burglary was opportunist.  You believed no one was home and you acted alone.  Therefore, I take as a starting point 42 months’ imprisonment, 3½ years, reduced to 28 months for your plea of guilty.  The assault occasioning actual bodily harm I will accept happened in the way that you claim it did.  The victim was an old gentleman of 79 who, it appears, was either injured or disabled at the time.  However, I do accept that the injuries were not of the most serious and that he has made a full recovery.

20.  I take, therefore, a starting point of 3 months’ imprisonment, reduced to two months for your plea of guilty.  That would be served consecutively.

21.  The criminal damage, as we know, was committed in order for you to retrieve your possessions.  It seems to me to be intrinsically part of the burglary itself and I do question whether it was actually necessary to charge that in addition. 

22.  I take in this case a starting point of 6 weeks’ imprisonment, reduced to 4 weeks for your plea of guilty.  That will be served concurrently.  Therefore the total is 30 months’ imprisonment.