HKSAR v. YAU CHUN WAI

 DCCC10/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 10 OF 2010

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Reasons for Sentence

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Charges

1.  D1 pleaded guilty to two counts of burglary and one count of attempted burglary.

2.  The offences were committed as follows:

(1)  On 11 November, 2009, whereby D1 entered Room 1403 of Block 13, Pak Tin Estate, Shek Kip Mei, as a trespasser and stole one mobile phone therein.

(2)  On 11 November, 2009, whereby D1 attempted to enter Room 1404, Block 13, Pak Tin Estate, Shek Kip Mei, as a trespasser, with intent to steal therein.

(3)  On 12 November, 2009, whereby D1 entered Room 515, Kai Shun House, Kai Tin Estate, Kwun Tong, as a trespasser, and stole some properties therein.

3.  Such offences were contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

Facts

4.  The facts of this case can be summarised as follows:

Charges 1 and 2

5.  In the morning, on 11 November, 2009, PW1 closed and secured the door and the iron gate of her residence at Room 1403, Block 13, Pak Tin Estate, Shek Kip Mei (hereinafter called “Room 1403”) before she left the premises. At about 12.50 pm on the same day, a resident, PW2, living at Room 1404, Block 13, Pak Tin Estate, Shek Kip Mei (hereinafter called “Room 1404”) heard some noise outside his residence. When PW2 opened the door he saw D1 standing outside. The padlock, which was used for securing the iron gate of Room 1404, was missing. D1 claimed that he was here to fix the water pipes at Room 1404, and the said padlock was damaged by his colleague. D1 then picked up the crow bar outside Room 1404 and left the scene. A few minutes later he returned and gave the broken padlock to PW2. At that time PW2 noticed that the iron gate of Room 1403 was left ajar. He reported the case to the police.

6.  At about 1.45 pm on the same day, PW1 returned to Room 1403 and found that her residence was ransacked and a mobile phone was missing therein. The identity of D1 surfaced after police investigation.

7.  On 13 November 2009 the police officers conducted a house search at Room 1327, Block 13, Pak Tin Estate, Shek Kip Mei (hereinafter called “Room 1327”). It was the residence of D1’s ex-girlfriend. A crowbar was found in Room 1327.

8.  On 21 November, 2009 D1 was arrested at Mong Kok. He admitted, under caution, that on 11 November 2009, having prised open the door of Room 1403 with a crowbar, he then entered Room 1403 and stole a mobile phone. He had also used a crowbar to prise the door of Room 1404 and had broken the padlock of Room 1404. When the occupant of Room 1404 came out, D1 falsely claimed that he was there to fix the water pipes. D1 had visited Room 1327, his ex-girlfriend’s residence, for a few times in November 2009. Later PW2 positively identified D1 to be the person who stood outside his residence at about 12.50 pm on 11 November, 2009.

Charge 3

9.  In the morning, on 12 November 2009, PW7 left his residence at Room 515, Kai Shun House, Kai Tin Estate, Kwun Tong (hereinafter called “Room 515”). When he returned at about 5.45 pm, he found that the main door of his residence was damaged. The following items in Room 515 were missing and stolen: two pendants, cash of $1,000, one necklace, one bracelet, one share certificate, one mobile phone, one gold medal, and one Rolex watch. The said watch was then recovered from the pawn shop on 3 December, 2009.

10.  On 7 December, 2009, D1 was arrested again. Under caution he admitted that he was living in Room 415 of Kai Shun House, and he burgled Room 515 on 12 November, 2009. He also admitted that he climbed the water pipes and entered Room 515 via the window of the kitchen. He stole some properties in Room 515, and on the same day he gave the said Rolex watch to the 2nd defendant as payment of the accommodation.

11.  The CCTV recordings of Kai Shun House, Kai Tin Estate at Kwun Tong captured D1 appearing at the 5^th floor corridor of Kai Shun House during the time between 10.55 am and 12.46 pm on 12 November, 2009.

Sentencing Guidelines

12.  The Court of Appeal in R v Chan Yui Man, CACC36/1988, has laid down general guidelines of sentence for domestic premises burglary. It was said three years was the proper starting point for a first offender of full age in a case of domestic premises burglary.

Background of D1 and Mitigation

13.  D1 aged 34, has a history of 16 convictions in the past 15 years. 12 of his conviction were crimes of dishonesty, including three burglary convictions. He is considered to be a persistent offender.

14.  In September 2008 he was sentenced by a District judge to 30 months’ imprisonment for burglary offences, and was released on 6 November 2009. Apparently imprisonment did not seem to have served any effective purpose to deter him from transgressing the law. Upon his release, and in less than a week’s time, D1 committed three cases of burglary. In such circumstances, this court views that a deterrent element in the sentence is called for and a higher starting point is justified.

15.  The three offences were committed at daytime in domestic premises. Equipment was used to prise open the gate and the door of the premises. Property was stolen from two of the said premises. This court has fully considered the background of the case and of D1, mitigation advanced by defence counsel, sentencing tariff, overall criminality of the defendant and the totality principle. This court will adopt a starting point of 39 months’ imprisonment for each of the three charges. As D1 is entitled to one-third discount for his plea, the sentence for each charge will be reduced to 26 months’ imprisonment.

Concurrent or consecutive sentence?

16.  The unlawful acts indicated in Charges 1 and 2 were committed on the same day, within the same building, and on the same floor. They will be treated as offences arising out of the same transaction or of a continuing criminal venture. A concurrent sentence would be appropriate in such circumstances. However, the burglary in Charge 3, which was committed the next day at a different area, though of similar nature, would seem to be a separate and unrelated offence.

17.  Having considered the appropriateness of consecutive sentence, and to ensure that the totality principle is achieved, the court will adopt a partly concurrent and partly consecutive sentence.

18.  The sentences are as follows: Charge 1, 26 months; Charge 2, 26 months; Charge 3, 26 months. Sentences on Charge 1 and Charge 2 are to run concurrently. Six months of the sentence in Charge 3 are to run consecutively to the sentences on Charges 1 and 2. The total term imposed would be 32 months’ imprisonment.