HKSAR v. SRIPIENGJAN ANONGNAT AND ANOTHER

DCCC 153/2021

[2021] HKDC 965

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 153 OF 2021

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REASONS FOR SENTENCE

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1.  The two defendants pleaded guilty to a joint charge of burglary, contrary to section 11(1)(a)  and (4)  of the Theft Ordinance, Cap 210.

Admitted Facts

2.  On 28 October 2020 at around 12:50 pm, PC 13681 (Officer Chan)  saw D1 and D2 enter the back alley of No 90-92 Fuk Lo Tsun Road from Carpenter Road, Kowloon City. D1 and D2 then furtively walked towards the direction of Nga Tsin Wai Road.  Officer Chan had an unobstructed view at all material times.

3.  Officer Chan then saw D1 and D2 walking towards the rear entrance of No 73 Lion Rock Road, Kowloon City (the Building)  and enter the Building from that rear entrance.  The Building was owned by Perfect Horizon Limited (the Company).

4.  At around 1:08 pm, Officer Chan saw D1 and D2 leave the Building from the same rear entrance.  D2 was carrying a SAMSUNG television (The TV).  D1 and D2 then proceeded in the direction of Nga Tsin Wai Road.  Officer Chan sought assistance from PC 19185 (Officer Lau)  and PC 26874 (Officer Tse).

5.  At around 1:10 pm, Officer Lau and Officer Tse spotted D1 and D2 with the TV next to D2.  They were then intercepted by Officer Lau and Officer Tse outside No 46 Fuk Lo Tsun Road for enquiry.

6.  D1’s backpack was searched.  A black glove, a pair of blue and orange scissors, a red G-shaped pipe clamp, a pair of red cutting pliers and a yellow and black torch were found inside D1’s backpack.

7.  D2’s backpack was also searched.  A pair of blue/grey gloves, a hand torch, 3 screwdrivers, a black spyglass, a silver spanner, a blue crowbar and 3 pairs of pliers were found inside D2’s backpack.

8.  At around 1:20 pm, Officer Chan arrived and confirmed that D1 and D2 were the persons who left the Building from the rear entrance.  Upon enquiry by Officer Tse, D2 stated that the TV was taken from a vacant flat by D1.  D1 entered the vacant flat to take the TV and he was waiting for her at the staircase outside the flat.

9.  Between 2:28 pm and 2:35 pm, D2 brought Officer Tse and Officer Chan to a unit on 1/F of the Building (the Unit), and stated that D1 told him that there was a TV inside the vacant unit and asked him to help take the TV down.  D2, Officer Tse and Officer Chan then went back to No 46 Fuk Lo Tsun Road.

10.  At around 2:45 pm, Officer Lau arrested D1 for burglary.  Under caution, D1 said that she picked up the TV at the staircase.

11.  At the same time, Officer Tse arrested D2 for burglary.  Under caution, D2 stated that D1 moved the TV out of the vacant Unit and he was standing at the staircase outside the Unit and then moved the TV to the Ground floor.

12.  In a subsequent cautioned video recorded interview, D1 stated inter alia that:-

(a)  She picked up the TV at the staircase inside the Building;

(b)  She intended to take the TV for her own use;

(c)  She bumped into D2 and asked D2 to carry the TV for her since it was heavy.

13.  In a subsequent cautioned video recorded interview, D2 stated inter alia that:-

(a)  D1 asked him to have a look at a TV. He entered the Building via the rear entrance (not secured with any door);

(b)  The TV was already near the staircase when he saw it;

(c)  He was not sure from where D1 obtained the TV;

(d)  D1 wanted to take the TV for her own use;

(e)  He was waiting for D1 at the staircase at the material time;

(f)  D1 then passed the TV to him on 1/F of the Building; and

(g)  He did not enter the Unit.

14.  Mr. Poon Tai Cheung (Poon), staff of the Company, confirmed about 2 weeks before the incident, there was a TV in the living room of the Unit and the Company regarded the TV as property with no value because it was abandoned by the previous occupant.  Poon confirmed that the main entrance was locked since the company had acquired the Building, but he was not sure if the rear entrance was locked.

15.  D1 and D2 entered 1/F of the Building as trespassers with intent to steal therein.

D1’s Background and Mitigation

16.  D1 was born in Thailand and was educated up to Secondary 6 level.  She came to Hong Kong in 1993.  She was married and has a son, who is now 26 years old.  She was divorced in 2016 and lived with her son until mid-2020 when the son returned to Thailand because of the pandemic.  Thereafter, she lived with some Thai friends in a rented flat in Mongkok.

17.  D1 has been employed as a cleaning worker since 2000, earning about HK$13,000 per month at the time of arrest.  She was convicted for 3 counts of theft on 26 February 2021 and was sentenced to 14 days’ imprisonment for each charge to be served concurrently.  Counsel pointed out that those offences occurred after the present offence and asked the Court to treat her as a person of clear record.

18.  Counsel informed the Court that according to Poon’s witness statement:-

(a)  The Company acquired the Building in about 2017;

(b)  The acquisition included all the units in the Building except the shops on the Ground floor;

(c)  After the acquisition, the Building’s front and rear entrance metal gates had been locked. However, the Company had not paid attention since then;

(d)  About 2 weeks prior to the incident, Poon had visited the Unit and he saw a TV inside the Unit. However, the Company considered it of no value as it was abandoned by the previous occupant;

(e)  At the material time, upon the request of the police, Poon checked the Unit again. There was no sign of breaking in at the front door of the Unit. He was not sure if the rear door had been locked or not; and

(f)  After the acquisition, the Company had not assigned any staff to monitor the entrance of the Building. The Building’s rear staircase exit had not been checked after acquisition.

19.  Counsel submitted that the Unit was vacant with abandoned property inside.  Since the units in the Building were all vacant, no occupants were expected to be inside.  There was no loss of property.  The TV was abandoned by the previous occupant and the Company was not claiming ownership.  There were no signs of break in and D1 has pleaded guilty at the earliest opportunity.  Counsel submitted that D1 is extremely remorseful and pledges not to reoffend.

D2’s Background and Mitigation

20.  D2 is 53 years old.  He was born and raised in Thailand and was educated up to secondary level.  He came to Hong Kong in 1990.  He is divorced with 2 children aged 33 and 20.  Prior to his arrest, he worked as a cook, earning HK$14,000 per month.

21.  D2 has a long history of criminal convictions.  Counsel submitted that D2 has no similar convictions or convictions related to dishonesty.  He argued that there are no aggravating factors in the present case and pointed out that D2 has pleaded guilty at the first opportunity.

Sentence

22.  D1’s Counsel relied on the case of HKSAR v Lee Chiu Yui also known as Li Chiu Yui and Lee Hung Kim [2015] 1 HKC 323 and HKSAR v Shea Pat Chi CACC 196/2012, unrep, [2012] HKCU 2458.  Both cases involved the burglary of vacant premises.

23.  In Lee Chiu Yui (supra), at around 1 am on 3 October 2013 a team of police officers spotted the defendant climbing over the fences into a construction site.  The defendant further climbed into a temporary office through an air-conditioner space.  He was intercepted by the police when he later climbed out of the construction site.  The defendant’s sling bag was searched with 5 screwdrivers, 2 pairs of pliers, one cutter, nine cutter blades, one pair of labour gloves, one flashlight, one electric drill key and a hexagonal key found.  The Court of Appeal held:-

“In the highly unusual situation where observably vacant premises with no or little loss of property were involved, the sentence for their burglary might reflect that fact by the adoption of a lower starting point for sentence. It was irrelevant whether the premises were domestic or commercial. The Summary of Facts described the temporary office in this case as ‘cleared out with all properties removed’, and was ‘ready to be demolished’ on the day following the present offence. In the circumstances, the customary starting point of 1 ½ years for a non-domestic burglary was manifestly excessive. Given the array of housebreaking tools present, and the appellant's determined and purposeful acts of trespass, a starting point of two years’ (and an ultimate sentence of 16 months’)  imprisonment would have been appropriate”.

24.  In the case of HKSAR v Chau Man Ying [2012] HKCU 1032 CACC 439/2011 (unrep), the defendant entered a vacated residential building awaiting redevelopment.  He was not equipped with any housebreaking tools.  Noting the state of the building, the low value of the property stolen and the fact that it was an ‘opportunistic theft’, the judge sentenced him to a lesser term of 2 years’ imprisonment after trial (the customary starting point of a domestic burglary is 3 years after trial).  On appeal, the Court of Appeal reduced the sentence to allow the defendant’s immediate release (after spending a year in custody)  and observed:-

“We think…a sensible exercise of discretion on the facts of this particular case would have resulted in a prosecution in the magistrate’s court; and we are satisfied that a materially lower sentence was warranted.”

25.  In Shea Pat Chi (supra), the defendant pleaded not guilty to burglary was caught prising the metal grille in an empty residential block.  He had with him 2 crowbars, screwdrivers, one hammer, one spanner, 2 pairs of tongs, 1 towel, 1 torch, 2 knives and 1 hand glove.  Noting the fact that the building was vacant, and that valuable property was unlikely to be found in any of the units, the judge also sentenced the defendant to less than 2 years’ imprisonment.  On appeal, the Court of Appeal declined to further reduce that sentence.  It distinguished the Chau case on the basis that here, the defendant was heavily equipped for a clearly premeditated offence.  It pointed to the fact that there was an actual act of breaking-in.  The Court concluded that the 2-year term was not manifestly excessive. 

26.  The Court accepts that the units in the Building were vacant with little or no property of value. In the circumstances, the Court should adopt a lower starting point.  Like Shea Pat Chi, both defendants in the present case were heavily equipped with housebreaking tools.  D1 was a cleaner whilst D2 was a cook.  There was no reason for them to be in possession of those tools.  This was clearly a premeditated offence.

27.  The Court also disagrees with D2’s counsel that there are no aggravating factors in the present case.  In HKSAR v Cheng Wai Kai (unrep CACC 338 & 339/2007), Yeung JA (as he then was)  stated at paragraph 15:-

“The starting point can be adjusted upwards if there are aggravating circumstances such as (1)  the offence is carefully planned and skillfully executed involving the use of heavy instrument or equipment; (2)  the offence is committed by two or more people; (3)  the offence targets at substantial premises and involves substantial properties; (4)  the offender is a professional burglar and not just an opportunist; (5)  the offender has previous convictions, particularly previous convictions of similar nature, and (6)  the offender commits multiple offences.”

28.  Not only were the defendants heavily equipped with housebreaking tools, they committed the offence together.  D2 has 7 previous convictions, mainly involving trafficking in dangerous drugs (which are very serious offences).  He has been going in and out of prison for last 2 decades.  In fact, he committed this offence within days after he was released from prison for a drug trafficking offence. These are all aggravating factors.

29.  By reason of the matters mentioned above, for D1, I adopt a starting point of 2 years.  That starting point is adjusted upward by 3 months to reflect that the offence was committed by 2 persons jointly.  In other words, the starting point will be 2 years and 3 months (27 months).  I give her full credit for guilty plea.  The sentence is reduced to 18 months.

30.  For D2, I also adopt a notional starting point of 2 years.  The starting point is adjusted upwards by 9 months to reflect his appalling record, committing the offence within days after release from prison (after serving a sentence of 47 months)  and the fact that the offence was committed by 2 persons jointly.  In other words, the starting point will be 2 years and 9 months (i.e. 33 months).  I give him full credit for his guilty plea.  The sentence is reduced to 22 months.