HKSAR v. SIU FAI KAM AND OTHERS

DCCC1069/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1069 OF 2011

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Reasons for Sentence

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The charges

1.  The three defendants in this case were jointly charged for and pleaded guilty to a count of conspiracy to commit burglary of a domestic premises.  In addition, D1 faced two other charges of burglary of domestic premises (Charges 3 and 4).  He pleaded guilty to Charge 3.  D3 faced but pleaded not guilty to another charge of assaulting a police officer in the execution of his duty (Charge 2).

2.  Upon D1 being convicted of Charges 1 and 3, D2 and D3 being convicted of Charge 1, Charges 2 and 4 were then left on the court’s file and not to be proceeded with without the court’s leave. 

The facts

3.  The facts of the case can be summarised as follows. 

Charge 1

4.  On 3 August 2011, at around 1135 hours, D2 was seen by Sergeant 46942 (PW1) to be driving a private vehicle (“the car”) with D1 sitting beside him.  They arrived at a meter carpark in Tsuen Wan (“the carpark”). At around 1241 hours, D3 appeared and he picked up a grey coloured bag (Exhibit 2) from the car’s trunk.  After a brief discussion amongst D1 to D3, they then boarded a taxi.  

5.  At 1255 hours, the three defendants got off the taxi at Belvedere Garden, Phase I, Tsuen Wan, New Territories (“the Garden”).  D3 was carrying E2.  Later, they walked into the podium of the Garden separately.  Around 1417 hours, D1 and D2 were seen coming out of the main entrance of Block 2 of the Garden.  At about 1420 hours, D3 was seen coming out from the Garden with Exhibit 2 (E2). 

6.  Shortly, police officers intercepted and arrested the three defendants, who were all carrying mobile phones.  Inside E2 (Exhibit 2) which D3 was carrying, there was a black briefcase, two crowbars, one screwdriver, two pairs of hand gloves and a receipt. 

Charge 3

7.  House search was conducted and at the residence of D1’s girlfriend, a Nikon digital camera (E8) was seized.  E8 was recognised by Miss Cheng Suk-yin (PW9) as belonging to her.  On 14 April 2011, PW9 had secured the doors of her apartment at Room 2004, Richmond Tower, Sha Tin Plaza, Sha Tin, before leaving for work in the morning.  When she returned home at around 4.35 pm on the same day, PW9 found that her home was ransacked and there were prise marks on the door and gate.  Cash of HK$20,000 and RMB15,000, jewellery (around HK$16,200), one Chanel handbag (E11), a Gucci handbag and four digital cameras including E8 were found missing. 

8.  Later, E11 had been retrieved from a second-hand store named Milan Station.  PW9 was able to recognise it to be hers by its serial number.             

Cautioned Interview

9.  D1 admitted under caution that he had conspired to burgle the Garden with D3.  Their plan was not known to D2.  Three of them took a taxi to the Garden.  D3 went up Block 2 of the Garden to scout for a suitable unit.  As there was no suitable unit for burglary, they then left.  D1 also admitted that he had stolen E8 and had sold all the other stolen items from the burglary at Richmond Tower. 

10.  Under caution, D2 claimed that he was invited by D1 to accompany him to visit a friend.  They took a taxi to the Garden. Later, D1 gave him the password to the main gate of the Garden and asked him to go to the 33rd Floor by himself.  The trio met there as they could not find their friend, so they left.

11.  Under caution, D3 claimed that D1 had handed him E2 and he did not know what was inside.  They then went to the Garden by taxi and D1 had asked him to go to Flat A on the 33rd Floor to look for a Mr Tse.  As he saw nobody there, he left by himself.

Background of the defendants and mitigation

12.  D1, aged 38, has six previous convictions, which were all dishonesty related, two of which were burglary.  His last conviction was on 26 January 2006, whereupon he was sent to 2 years’ imprisonment for a burglary charge which he committed with D2.  Shortly before the present offence, D1 was made redundant from his job as a nightclub manager.  He has an 11‑year‑old daughter and parents in their 60s to take care of.

13.  D2, aged 45, has a previous conviction of burglary, which he committed together with D1.  He was consequently sent to 23 months’ imprisonment for the same.  Prior to the arrest, D2 had been a nightclub manager for about 4 years and earning $15,000 per month.  He is a divorcee with two sons aged 13 and 16 by his previous marriage.  Both parents, in their 70s, are suffering from cancer. 

14.  D2 claimed that he only knew of the burglary at a later stage but he decided to join in and participate in the plot with D1 and D3.  He was remorseful for what he had done and was sorry to have consequently placed his family in such a predicament, financial or otherwise.   

15.  D3, aged 36, has 32 previous convictions, 25 of which were dishonesty related.  He had been in and out of prison on numerous occasions.  His last conviction was in February 2011, whereupon he was sentenced to 14 weeks’ imprisonment.  In less than half a year upon his release from the prison he committed the present offence of burglary due to greediness and financial difficulties. 

Sentencing guidelines

16.  The Court of Appeal in AG v Lui Kam Chi [1993] 1 HKC 215, had established a general starting point of 3 years for burglary of domestic premises which was committed by a first offender of full age. 

17.  This court accepts that the burglary offences which happened on different days did not occur at night time.  They were not the worst kind of burglary.  

18.  Where Charge 1 is concerned, no forcible entry, no loss of properties were involved.  Nevertheless, tools were intended to be used as and when the situation arose, whereas burglary in Charge 3 involved forcible entry and tools being used.  Although the occupier was not at home during the material time, she had suffered loss of properties worth over $50,000.

Sentence

19.  D1 and D2 had previous convictions of burglary, whereas D3 had appallingly bad record of dishonesty convictions.  They have experience of incarceration and yet they did not learn their lesson therefrom and had no sign of reforming.   

20.  Having considered all the circumstances of the case and of the defendants, mitigation advanced by their counsel, guidelines laid down by the Court of Appeal, this court would still adopt a starting point of 3 years for each count of burglary.  Each defendant is entitled to one-third discount for their guilty plea so as to reduce the sentence of each charge to one of 24 months’ imprisonment (2 years).

21.  No circumstances had justified further reduction in sentence.  As such, this court imposed 24 months’ imprisonment each on Charge 1 against D1, D2 and D3 and on Charge 3 against D1 solely.     

Concurrent and consecutive sentences

22.  Charge 1 and 3 were separate and distinct offences of burglary committed on different days (i.e. 3 August 2011 and 14 April 2011 respectively).  This court has to consider the totality principle to appropriately reflect the criminality of the offence and culpability of D1.   

23.  This court orders that the sentence of 9 months’ imprisonment on Charge 1 should run consecutively to the sentence of 24 months’ imprisonment on Charge 3.  The remainder is to  run concurrently. 

24.  In other words, D1 has to serve 33 months’ imprisonment in totality, whereas both D2 and D3 have to serve 24 months’ imprisonment each.