HKSAR v. MA TIM CHOI

DCCC 108/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 108 OF 2014

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

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

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

Reasons for Sentence

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

1. The defendant has been convicted on his own plea of two offences of burglary.

2. The facts admitted show that both burglaries were committed at the same premises.  Those premises are an office at a garage containing a 1,400 square feet open area.  The premises themselves are a 600 square feet metal shack described as an office.  The office is generally secured by a roller gate and padlock.  It is enclosed by metal hoardings and has two CCTV cameras installed.

3. The burglaries occurred on 3 September 2013 and 13 December 2013.  On the first occasion on 3 September 2013, the main entrance was secured with a padlock.  On the next morning, 4 September, it was discovered that $5,000 cash had been stolen from the money boxes and drawers of a working desk in the office.  No signs of breaking in were noticed.  The CCTV inside the premises was reviewed.  A man was seen to have sneaked into the office that evening.  He used a paper box to cover one of the CCTV cameras.

4. The second burglary occurred on 13 December 2013.  On this occasion it was discovered whilst in progress.  The office light was on, and the CCTV camera was covered by a paper box.

5. The defendant was arrested on that evening, hiding behind a private car.  He was wearing labour gloves, had a torch, and in his waistbag was $716.10.

6. The defendant admitted immediately under caution.  He said he was there to steal wires from the office, but was caught before he had done so.  He immediately admitted burgling the office on 3 September and stealing money there.  It was found that a metal hoarding at the back of the garage was broken and had formed a gap.

7. On 14 December the defendant conducted a more detailed video‑recorded interview.  He said that in respect of the 13 December 2013 burglary, he had ridden his bicycle to the rear side of the garage and seen a gap between the metal hoardings.  He had torn off the mesh, stepped on a bucket and sneaked into the office through that gap.  After entering the office, he had used a paper box to cover the CCTV camera and stolen the $716‑odd of cash inside.

8. He went on to admit that on 3 September 2013, he had found the metal hoardings surrounding the office were not well welded.  He had removed a piece of the metal hoarding to gain entry, searched the office for about 20 minutes, and then stolen the $5,000 cash from the working desk.  The defendant admitted all these facts.

9. His antecedents and criminal record were produced and agreed.  The defendant is presently aged 47.  He is a Hong Kong resident, born here.  He has had a number of sentences of imprisonment, and was most recently released on 16 May 2013.  He lives alone in Sheung Shui.  He has a number of previous convictions, a total of 17 appearances in court, totalling 20 offences in total.  Almost all are offences of dishonesty, theft, and attempted theft and burglary.

10. He has two similar offences.  In 2010 he received a sentence of 1 year and 4 months for a burglary.  A year later he received a sentence of 5 months’ imprisonment for burglary.  In 2012 and 2013, the defendant received a number of convictions for theft and attempted theft, and served sentences ranging between 2 months and 6 months’ imprisonment.

11. It is safe to say the defendant has a poor record for offences of dishonesty.

12. In mitigation, it was said the defendant was living on CSSA at the time.  He co-operated with the police, made full admissions, and has shown remorse by his pleas of guilty.  The offences involve offences at the same location.  It is said the defendant was not a professional burglar.  The burglaries were committed alone.  The nature of the premises indicated that no substantial property would be found there.

13. In respect of his entry into the premises, in the first burglary, the metal hoarding was not welded and entry was gained by removing a piece of hoarding.  For the second burglary, a gap was found between the metal hoardings, and he tore off part of the iron fence mesh.

14. The mitigation includes what is the position for the starting point for sentence for the burglary of a non‑domestic premises. It is common ground that for a first offence of a person committing such an offence, the starting point for sentence would be 30 months’ imprisonment after trial.

15. I have been referred to the case of HKSAR v Sim Ka Wing CACC 450/2000, where Mr Justice Keefe said that:

“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 an opportunistic burglar akin perhaps to the sneak thief who walks into an open office to steal whatever he can find.”

16. In mitigation it was argued that the defendant may well fall into that category.  It is said the defendant entered into the office on both occasions by opportunity.  For the first burglary there were no signs of a breaking in and the hoardings were not welded, and in the second burglary there was a gap.

17. I do note that it is admitted that on 3 September 2013, PW1 had checked the office and secured the main entrance with a padlock.

18. I do not consider that either of these burglaries could be described as an opportunistic walk-in type of burglary.  In both burglaries the premises were secure.  In the first burglary the defendant removed a piece of metal hoarding to gain entry.  In the second burglary the defendant tore an iron mesh.  In both burglaries the defendant used a paper bag to cover up the CCTV camera.  This is not the same as somebody walking into an open space which he enters as a trespasser because he is not permitted to enter.

19. I see nothing in the conduct of these burglaries to reduce what could be the accepted guideline starting point for these offences.  I have considered whether the defendant’s criminal record is sufficient to consider that to be an aggravating feature in respect of this case.

20. However, I consider the starting point of 30 months’ imprisonment in respect of each offence is sufficient to reflect the defendant’s criminality and his own individual circumstances.  Thus the starting point for sentence on both Charge 1 and Charge 2 will be the guideline of 30 months’ imprisonment.

21. The defendant is entitled to a discount of one‑third from that to a sentence of 20 months’ imprisonment on each charge.

22. The offences are repetitious.  They do involve the same premises, but they are separated by about three months of time, so they form separate identifiable criminal acts and are liable to be served either wholly or in part consecutively.  I must consider the appropriate overall totality of sentence for these offences.

23. I bear in mind that the premises are what is described as a metal shack office, poorly secured, where, as counsel for the defendant says, it is unlikely there would be items of high value.  I believe that the overall totality of sentence can be satisfied by ordering that of the 2nd offence, 6 months of that sentence be served consecutively to the 1st offence, giving an overall total of 26 months, or 2 years and 2 months’, imprisonment for these offences.