HKSAR v. SO WAI MAN

DCCC 734/2019

[2019] HKDC 1670

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 734 OF 2019

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REASONS FOR SENTENCE

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Introduction

1.  The defendant is convicted upon his own guilty plea of one charge of burglary.

Facts

2.  At the material times, Phoenix Apartments at Nos 54-70 Lee Garden Road, Causeway Bay (the “Building”) was a residential and commercial building.  There was a management office located on the Ground Floor in Lower Block of the Building (the “Management Office”).  The Management Office had a wooden door secured by a lock.  CCTV was installed in the Management Office.  A desk fitted with drawers was placed there for the use by the security guard of the Building, and the first drawer was secured by a lock (the “Subject Drawer”).  A tall cabinet secured by a lock was placed there next to the wooden door (the “Cabinet”).

3.  At about 11 am on 27 May 2019, the defendant checked in a room in a hostel located on the 2^nd Floor of the Building (the “Hostel”).

4.  Mr Lui was employed as the security guard of the Building.  At about 6:50 am on 28 May 2019, Mr Lui came to the Building and started his work.  At about 8 am on the same day, he left the Management Office to perform petrol duty.  When he left the Management Office, the Management Office was in a normal condition.  He then closed the door without locking it.  At about 8:35 am on the same day, he returned to the Management Office.  After he opened the door, he noted:

(i) the Subject Drawer was prized open with its lock damaged;

(ii) there were prizing marks on the Cabinet;

(iii) the box in which the CCTV system was located was opened;

(iv) a pair of scissors and an iron rasp were found on the ground; and

(v) nothing of value was missing from the Management Office.

Mr Lui therefore made a report to the police.

5.  The police subsequently attended the Management Office and found:-

(i) there were ransacking signs inside the Management Office;

(ii) electricity cable connected to the monitor of the CCTV system in the Management Office was cut off;

(iii) relevant footage of the CCTV shows that:-

(a) at 8:07 am on 28 May 2019, the defendant who had tattoos on both arms and was wearing a white T-shirt, grey pants and dark colour slippers entered the Management Office alone;

(b) the defendant took a towel to cover his hands;

(c) he took out a hard object from a drawer and tried to use it to prize open the Subject Drawer and the Cabinet;

(d) he searched the Management Office; and

(e) he cut off the electricity cable connected to the CCTV system installed there and left the Management Office at 8:20 am on the same day.

6.  The police located the defendant in the Hostel.  There were tattoos on both arms of the defendant.  His clothes also resembled those shown in the aforesaid CCTV footage.  Under caution, the defendant admitted that he had entered the Management Office with intent to steal there.

7.  In a cautioned video-recorded interview with the defendant, he said:-

(i) at about 8 am on 28 May 2019 when he was leaving the Building, he walked past the Management Office and noticed that its door was unlocked. He therefore opened the door intending to steal therein;

(ii) he found a knife there and used it to prize open the Subject Drawer. He then searched through the Subject Drawer and found an iron rasp there;

(iii) he used the iron rasp to try prize open the Cabinet;

(iv) he cut off an electricity cable there;

(v) he took a piece of cloth from the Management Office and used it to wipe off his fingerprints; and

(vi) he did not take anything away from the Management Office.

Previous record and antecedent

8.  Prior to the commission of the present offence, the defendant had 52 previous convictions resulting from 35 court cases.  Out of the 52 previous convictions, he had:-

(i) 16 convictions of theft sentenced in July 2002, October and December 2004, May 2006, June 2008, August and December 2009, May 2011, July 2012, December 2013, August 2014 and March 2015;

(ii) 1 conviction of attempted theft sentenced in June 2008; and

(iii) 3 convictions of burglary sentenced in December 2013, October 2015 and October 2017.

9.  He was born in December 1982 and is now 36 years old.  He received education up to Form 3 level.  He used to work as a casual decoration worker.  At the time of the offence, he was unemployed.  He is divorced with two sons, one aged 9 and one 11.  He was last sentenced in October 2017 for 26 months’ imprisonment for the offence of burglary and was released in December 2018.

Mitigation

10.   Mr Pun for the defendant relied on his written Skeleton Mitigation dated 6 December 2019. He submitted that:-

(i) the defendant admitted the offence upon arrest and indicated his guilty plea at the earliest opportunity;

(ii) the present case was a burglary of non-domestic premises for which a starting point for a first offender of full age is 2½ years’ imprisonment;

(iii) the present burglary was opportunistic in nature justifying a lower starting point;

(iv) the defendant did not break into the Management Office where there was no one inside; and

(v) nothing was stolen by the defendant.

R v Wong Man [1993] 1 HKC 80, HKSAR v Cheung To Ming [2006] 2 HKLRD 259 and HKSAR v Chau Man Ying CACC 439/2011 were referred to by Mr Pun.

Sentence

11.  Paragraph 11 of the judgment of Cheung To Ming reads:-

“11. Ms Lai also very properly drew our attention to the judgment in HKSAR v Sim Ka-wing, CACC 450/2000 which states as follows:

9. The conventional starting-point of 2½ years’ imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point. The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find. Likewise, the conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value.”

“Sneak thief” was described as someone who walks into an open office to steal whatever he can find.

12. In the present case, the defendant’s involvement was more than a sneak thief – the door to the Management Office was closed although unlocked, he prized open the Subject Drawer, he tried to prize open the Cabinet, and he cut off the electricity cable connecting the CCTV system with the monitor. I find that the present burglary was only quasi-opportunistic in nature in that the defendant entered the Management Office where the door to the Management Office was not locked.

13. In light of the aforesaid, I am minded to adopt a starting point of lower than the usual 2½ years’ imprisonment for non-domestic premises burglary. I will adopt a starting point of 21 months’ imprisonment to reflect that this burglary was quasi-opportunistic in nature.

14. The defendant has 20 previous convictions of dishonesty related offences, out of which there were 3 convictions of burglary. His last offence was burglary sentenced in October 2017 for 26 months. He was released in December 2018 and committed the present offence 6 months afterwards. Because of his previous convictions as aforesaid, I will enhance his sentence by 7½ months to 28½ months’ imprisonment.

15. The defendant indicated his intention to plead guilty at the earliest opportunity. I therefore give him 1/3 discount. There being no further valid mitigating factors justifying further reduction in sentence, the defendant is sentenced to 19 months’ imprisonment.