HKSAR v. YAU CHUN CHUEN AND ANOTHER

DCCC 686/2019

[2020] HKDC 67

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 686 OF 2019

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REASONS FOR SENTENCE

1.  The defendants plead guilty to two joint charges of burglary of domestic premises, contrary to section 11 of the Theft Ordinance[1] (charges 1 & 3[2]).

2.  Full particulars of the offences are set out in the summary of facts admitted by the defendants. 

3.  In summary in May 2019 no one was residing in the flat on the 3rd floor of No. 165 Yee Kuk Street in Sham Shui Po (“the flat”) which was secured by an iron chain and padlock by the developer Apex Development Holdings Company.  

Charge 1

4.  At around noon on 22 May 2019 Mr Lau, a neighbour living in the same building was walking downstairs when he saw the defendants together with another Chinese male using a pair of pliers to cut open the iron chain on the metal gate of the flat on the 3rd floor. 

5.  Mr Lau asked the defendants what they were doing.  D2 replied they represented the contractor to recycle items and that they had forgotten to bring the key. 

6.  Feeling suspicious Mr Lau called the developer.  At around 3:00 p.m. Mr Tang, a manager with the developer who patrolled the building, went to the flat and discovered that the metal gate was cut and the glass inside the flat was shattered.  Window frames had been removed and stolen together with an air conditioner. 

7.  CCTV footage captured the defendants on the morning of 23 May 2019 visiting a recycling store at No. 184 Hai Tan Street in Sham Shui Po where they received some cash in exchange for seven window frames.

Charge 3

8.  At around 3:30 p.m. on 24 May 2019 D1 and D2 went to the flat of Mr Lau stating that they came on behalf of the recycling company.  Mr Lau asked the defendants not to leave while he contacted the developer.  Mr Lau also called the police.

9.  The defendants however left and walked downstairs but were intercepted by Mr Tang as they walked out of the building.  Photographs were taken of the defendants’ identity cards. 

Arrest

10.  D1 was arrested when the police arrived and admitted that he went to the flat with three others to dismantle items to exchange for money.  D2 was arrested three days later on 27 May.

11.  After D1 was arrested the police found that the metal gate of the flat had been removed and the main door dismantled.

12.  In subsequent video recorded interviews both defendants admitted, inter alia, that on 22 May 2019 they entered the flat on the 3rd floor; dismantled window frames and air conditioners which they took the next morning to a recycling shop for resale; on 24 May they went back to the flat to see if there were any more window frames to be dismantled and taken away; they left after finding there was no more windows to dismantle and shortly after they were intercepted when leaving the building. 

Mitigation

13.  In passing sentence, I have carefully considered the oral and written submissions of Mr Ng and Miss Yeung together with the authorities submitted by counsel[3].

14.  I have read the mitigation letter written by D1.

15.  I take into account that D1 has no previous convictions for burglary.  Although D2 has five previous convictions for burglary these were in 1992, 1993 and 1995. Apart from a recent conviction for theft D2’s last conviction for an offence of dishonesty was in 2000.  In the circumstances I do not enhance D2’s sentence by reason of his previous record. 

Starting point

16.  The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.

17.  Lower starting points have been taken where premises are vacant or under renovation[4].  On the other hand the commission of burglary by two or more persons is an aggravating feature of  sentence[5]. 

18.  Both Mr Ng and Miss Yeung refer the court to HKSAR v Chau Man Ying[6] and submit that the property stolen was old, of low value and abandoned[7].  Submissions have also been made that the burglaries were opportunistic. 

19.  I disagree the burglaries were opportunistic.  The burglaries were committed by at least three burglars.  The flat was secured and needed to be broken into to gain entry.  Tools were used to remove the window frames and air conditioner. 

20.  In HKSAR v Lee Chiu Yui the Court of Appeal held where the burglar had with him an array of housebreaking tools when burgling a temporary office which was cleared out with all properties removed and was ready to be demolished the appropriate sentence after trial was 2 years’ imprisonment[8].   

21.  The Court of Appeal at §10 referred to the judgment in HKSAR v Shea Pat Chi[9]where the Court of Appeal upheld a 2 year sentence for burglary of vacant domestic premises where valuable property was unlikely to be found. 

22.  I have had the opportunity of looking at photographs of the flat.  Whilst the window frames and air conditioner may have been old their removal cannot in my view be equated with someone walking past vacant premises and taking items of little or no value. 

23.  In the circumstances I am satisfied that by reason of the flat being vacant the appropriate starting point for the burglaries is 2 years’ imprisonment which starting point I enhance by 3 months by reason of the aggravating feature that the burglaries were committed by at least three burglars. 

24.  Giving the defendants full credit for their pleas of guilty reduces the sentence on each charge to 1 year and 6 months’ imprisonment.     

Totality

25.  Mr Kwan confirms that the only evidence on charge 3 is the confession of the defendants.  In HKSAR v Ma Ming[10] the Court of Appeal held that the fact that a frank confession provides the only evidence which supports the charge did not entitle the defendant to a further discount over and above the one-third discount.  The court did however say that when considering the totality of the sentence a court, in exercising its discretion, can take into account the fact that the frank confession of a defendant provides the only evidence to support the charge. 

26.  Taking into account the defendants burgled the same premises together with their confessions, I am satisfied concurrent sentences are appropriate.  I am satisfied that a total sentence of 1 year and 6 months’ imprisonment properly reflects the defendants’ criminality on the two charges and takes into account their personal circumstances and the seriousness of the offences[11].  

Sentence

27.  The defendants are convicted and sentenced to concurrent sentences of 1 year and 6 months’ imprisonment.