HKSAR v. CHAN WING YUEN

DCCC 354/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 354 OF 2015

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

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

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

REASONS FOR SENTENCE

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

1. Defendant, this morning you came before me facing one charge of burglary (Charge 1) and another charge of dangerous driving (Charge 2). You pleaded guilty to Charge 1 whilst pleaded not guilty to Charge 2. As a result of plea bargaining, prosecution informed the court that they were contented to leave Charge 2 on the court file upon your conviction entered on Charge 1 and not to proceed with Charge 2 without the leave of the court.

2. According to the amended Summary of Facts which you have admitted, the premises which was burgled in respect of Charge 1 was a Japanese restaurant situated at Caroline Hill Road, Causeway Bay.

3. The burglary offence took place at around 2 am on 23 December 2013. According to the facts, earlier in the evening of 22 December 2013, you together with three other males (M1 to M3) were already spotted by a team of police officers in Mong Kok acting suspiciously and you together with these other three males were put under close police observation. 

4. At about 2 minutes past midnight on 23 December 2013, you were seen driving a private vehicle, registration No HW 1011, carrying the other males away and went to other areas before finally came to Causeway Bay at Caroline Hill Road.  The police followed your vehicle and saw the four of you alighted from this vehicle and were talking to each other, standing by the vehicle and kept looking around.

5. At about 2 am, while M1 was still looking around at the junction of CH Road and Leighton Road, M2 took out a rucksack from the vehicle and walked to the Japanese restaurant.  M3 also walked to the restaurant and then he took out a crowbar-like object from the rucksack carried by M2.  Then M3 squatted down and prised open the door lock at the restaurant’s entrance.  Meanwhile, M2 stood beside, M3 and kept looking around. 

6. After one to two minutes, the two of them, M2 and M3, walked away. Soon, M2 who was carrying a rucksack, returned and entered the restaurant via the entrance.  After seven to eight minutes, M2 walked out from the restaurant and carried with him a till.  You were then seen by the police walking to the private vehicle and appeared to do something at the driver’s seat.  M2 then put the till into the vehicle’s boot.  You also gave an umbrella to M2 who then walked to the building next to the restaurant.  M2 opened the umbrella and appeared to do something.  At this juncture, the police approached to intercept M1 to M3 respectively.

7. M1 to M3 put up a brief struggle but they were all subdued by the police.  During the struggle, M2 dropped the rucksack onto the ground.  Upon the check on the rucksack, it was found items including two crow bars, one screwdriver, two pairs of labour gloves, a torch, some receipts and a number of plastic bags each containing some cash (about HK$3,969.2) were found. 

8. During the police’s intercept, you got on the driver’s seat of the private vehicle and then drove away. 

9. The police subsequently located your private vehicle at a car park in Prince Edward Road, Kowloon.  According to the CCTV footage of the car park, it shows that shortly before 3 am on 23 December 2013 you drove the vehicle into the car park.  You then walked in and out of the car park.  You were also seen once carried away a till-like item and then you drove away another private vehicle.

10. The restaurant owner later confirmed to the police that cash of about HK$40,416.20 in total, some receipts and the cashier’s till were missing from the restaurant.

11. M1 to M3 were later charged by the police and they were brought before the District Court for trial in case No DCCC 221/2014.  The three of them (D1 – D3) had pleaded not guilty to the burglary charge and they were subsequently convicted after trial on 26 September 2014 before HH Judge Douglas Yau (“Judge Yau”).

12. Defendant, you are now aged 53 and you have only received primary 6 education in the mainland.  You are married but you have separated with your wife.  You have two daughters out of this marriage who is aged 32 and aged 26 respectively.  They are still single and living together with the mother. 

13. In the past, you have been brought before the court in no less than eight occasions involving altogether 12 convictions, out of which there was one similar burglary offence which was in 2002 where you were sentenced to 2 years’ imprisonment in the District Court.  There were also 5 other theft-related charges for which you had been fined or sentenced to imprisonments.  The last theft conviction was in 2008 where you were sentenced in the Tuen Mun Magistracy to 6 months’ imprisonment.

14. This morning, your counsel Mr Yip had explained to the court that at the time when the police intercepted the three other defendants, you were very frightened and you therefore made good escape and you took away the cashier till from the boot of the vehicle and later you dropped it at a refuse collection point in Lam Tin Estate, Kowloon.  You denied ever opening the till and took away the money from the till.

15. Mr Yip also informed the court that at the time of the offence, you were working as a casual cross-border lorry driver and you could earn up to $12,000 in a good month, but most of the time you have insufficient jobs and therefore you could only earn a few thousand dollars. 

16. As to the reason why you committed the present offence, Mr Yip informed the court that you separated with your wife in 2013 because you have entered into an extra-marital relationship with a female in Shenzhen.  The female has a daughter studying in Primary 5 and you became responsible for supporting their livings.

17. Mr Yip told me that because the daughter of your cohabitee has fallen from height in an accident and therefore incurred medical expenses for several tens of thousands of renminbi.  You were in short of money at that time and therefore you could not resist the influence and the temptations of the dubious peers and promised to collude together with the other three persons to commit the present offence.

18. Mr Yip had described your role in this offence as just a driver of the getaway car.  I have already supplied the Reasons for Sentence by Judge Yau for Mr Yip’s reference.  After looking at what Judge Yau had dealt with the other three defendants in the same matter, Mr Yip agreed with what the court had said about the starting point of this offence, and that is, in respect of a non-domestic burglary offence, the usual starting point would be 2½ years’ imprisonment, subject to mitigating and aggravating factors.

19. Mr Yip also agreed with the analysis by Judge Yau in that he had clearly identified the aggravating factors common to all defendants in the case of DCCC 221/2014 and of course also common to you in this case in that the burglary was a premeditated one and involving at least four accomplices and a getaway car; tools were employed to gain entry into the Japanese restaurant as well as to prise open and take away the till. 

20. Judge Yau had also looked at the individual background of an individual defendant and sought to identify the individual aggravating or mitigating factors in this case.

21. Having looked at the way Judge Yau had dealt with the other three defendants in DCCC 221/2014, Mr Yip submitted to me that even if the court agreed that your role in this matter is still higher than D1 in DCCC 221/2014, he would still say that your role is somewhat less than D2 and D3 as you were only responsible for driving the getaway car. 

Sentencing considerations

22. As rightly pointed out by Judge Yau, the maximum sentence for burglary is that of 14 years’ imprisonment.  Burglary is always regarded as a serious offence.  The Court of Appeal had already laid down clear guidelines and that in this case of course a starting point of 30 months should be applied, subject to the mitigating and aggravating factors.

23. In your case, defendant, I cannot detect any effective mitigating factor other than the fact that you have pleaded guilty.  I have listened to the reason why you committed the present offence but the court can never accept any economic reason for committing crimes.  Even though you were in financial difficulty after what happened to the daughter of your cohabitee, it was not an excuse for you to collude together with the other persons to commit burglary. It is particularly more so because you are not a person of clear record. 

24. As said, you have as early as in 2002 been convicted of burglary in the District Court for which offence you have already been sent to prison for 2 years and you should have learned a lesson.  What is more, you have also committed other offences of dishonesty before and even after the burglary charge that I have mentioned. 

25. Mr Yip had tried to distinguish your criminal records from that of the other defendants in DCCC 221/2014.  However, sentencing is an art and it is not a pure mathematics.  I am satisfied that in your background, clearly, the sentence has to be increased because you have previous criminal records, especially because you have a similar burglary record.  For this reason, you would receive a further 3 months’ imprisonment.

26. I must stress that this is not to punish you for what you have done in the past.  According to the Court of Appeal, rather it is meant to be a deterrent sentence so that you can be deterred from ever committing the offence again and it is also to protect the public.  (See HKSAR v Chan Piu Chi [1999] 2 HKLRD 830)

27. As to the aggravating features common to all defendants, Mr Yip had tried to submit that although you were involved in a premeditated offence involving three other defendants, your role was limited to only as a driver of a getaway car. 

28. Mr Yip had tried to persuade the court that since Judge Yau had decided not to increase the sentence because in his case, D1 took a lesser role when compared to D2 and D3, that perhaps I should also adopt the same and not to increase your sentence because of your lesser role.  While your role might be less than D2 and D3, still I would not say that your role can be compared to that of D1.

29. Firstly, you were the driver of the getaway car.  Without your assistance, the offence could not be completed even if they have successfully gained entry into the restaurant and got away with the stolen properties. Secondly, the most valuable missing property in this offence, namely, the cash till which carried the bulk of the stolen monies were carried in the boot of the vehicle which you have driven away.  You did not just got away yourself after you parked your vehicle.  According to the CCTV footage and also from what you have told your counsel, you saw fit to carry the till and switched vehicle and drove away.  What is more, you told the court that you have left the till at a refuse collection point albeit you said that you did not break open the till and took away the monies inside. 

30. I must accept that there is no positive evidence to establish that you have indeed took away the monies from the till.  However, be that as it may, you still saw fit to destroy the most important evidence in this case.  As a result, the owner of the restaurant is unable to recover his loss.  For these reasons, I decline to treat you in the same way as Judge Yau had treated D1 in his case.  I still think that for what you have done in this case, you deserve a further increase of 3 months’ imprisonment.

31. As a result, taking into account your individual aggravating factor as well as the common aggravating factor, defendant, I will adopt a total starting point of 36 months’ imprisonment (30 + 3 +3).  Because you have pleaded guilty as said earlier, you are entitled to one-third discount and I therefore sentence you to 24 months’ imprisonment.