HKSAR v. TSOI CHUN YU

DCCC1249/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1249 OF 2008

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Reasons for Sentence

1.  The defendant pleaded guilty to two charges before me one is burglary and the other one is possession of offensive weapons, namely one Samurai sword and one machete and one knife.

2.  The prosecution case revealed that on 24 September 2008 at about 4 pm, PW2 heard a loud clicking noise from her neighbour.  She immediately called the police. 

3.  The police arrived within two minutes. When PW4 and his team member entered the alley of the building, he saw the defendant and another male come out from the rear gate of the building.  The defendant and the other male started to run away.  PW5 and 6 intercepted the defendant while the other male escaped from the chase.

4.  PW1 was the owner of the hair salon.  He left the premises at about 6 pm on the previous day.  He found the main gate was prised open and the salon had been ransacked.  He also found a bag did not belong to him but inside the bag he found his own belongings which were two digital assistants and $3,220.

5.  The defendant’s DNA was found on the strap of the bag.  After the arrest by PW5 who found a car key from the defendant, who admitted that he has parked his car nearby and that is Sai Yeung Choi Street South, near Argyle Street.

6.  Upon search of the car a pair of pliers, one Japanese Samurai sword and one machete and one Rambo knife and one hammer were also found inside the car. 

7.  In respect of the defendant’s record, he had been convicted by the court on 15 occasions, 27 convictions altogether.  Two similar to the first charge. 

8.  In mitigation I have been informed that the defendant is now 41 years of age, lives with his girlfriend, previously earned $9,000 to $10,000 as a printing worker.  He also has two young daughters being looked after by his parents. 

9.  In respect of the first charge, the defence counsel agreed that the non-domestic burglary, such as the present case, should be 2½ years as a starting point.  While the second charge do not have any guideline, Mr Fu tried very hard to persuade me that it should be in the region of about 6 months.

10.  In his submission he referred me to an appeal case,    R v. Lau Wai-kun HCMA 523/2001.  In that case the appellant was convicted after trial.  He had one water pipe with him for self-defence. 

11.  While, in this case, the offensive weapon was concealed inside the compartment of a car, and the defendant told the police that these offensive weapons were for his own collection, I had the opportunity of examining the three weapons in question and no doubt they are all very lethal in nature.  All designed with very long sharp blades with very good handles.  One of the weapons with angular sharp edges and they are all very dangerous weapons indeed. 

12.  I cannot agree with Mr Fu’s submissions that it attract a sentence of 6 months.  These are three weapons as compared to one water pipe. 

13.  In passing sentence, I bear in mind of all the mitigating factors put before me.  The correct starting point for a single charge of non-domestic burglary is one of 30 months.  Given the credit to the defendant’s guilty plea, it comes down to 20 months.  As to the second charge, I adopt a starting point of 15 months, reduced to 10 months, 5 months to be run concurrently to the 1st charge.  In total, 25 months.