HKSAR v. TANG YIU MAN, KENNETH

DCCC452/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 452 OF 2012

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Reasons for Sentence

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1.  Defendant, you pleaded guilty to one offence of burglary, contrary to sections 11(1)(b) and (4) of the Theft Ordinance, Cap. 210. You admitted the brief facts and I convicted you. What occurred is as follows.

2.  The site in question is at 3 Tin Cheung Terrace, Ha Wo Che, Shatin and was surrounded by two metre tall wall and a locked gate. On the site there was a three storey house which was under renovation. Construction materials and tools were place on the ground outside the house. At about 6.20 pm on 1 April last police officers including PW2 and PW3 were patrolling Wo Che Village. 

3.  Upon reaching the footbridge near Wo Che Estate which led to the village, they saw you pushing a trolley, which is E2, with an air conditioner compressor, E1, and a rucksack on it.  They intercepted you and revealed your identity.  A search revealed a bolt cutter, E3, two spanners, E4, a screwdriver, E5, a plug with two cables, E6, three electrical wires, E7, 10 copper pipes, E8, two bottles of lubricant, E9, two reflective tabards, E10, a pair of gloves, E11 and a sander, E12, inside the rucksack.

4.  Upon inquiry you said the following. 

1) You stole exhibits 1 to 12 from the site.

2) You had walked past the site two days ago and seen the items at about 2 pm you had returned to the site and seeing nobody there, climbed in. You stole the things from there.

3) You also stole a bundle of electrical wires, E13, and six air conditioner parts, E14, which you placed at a nearby slope.

4) You intended to sell the things.

5.  Arrested and cautioned you repeated your admissions.  You then led the police to the site and slope where E13 and E14 were recovered.  You indicated two ladders which you had used to enter the site. 

6.  In a subsequent video recorded interview, under caution, you repeated your earlier admissions adding that prior to being stopped, you had intended to return to the site to remove the air conditioner parts.

7.  Mr Lam Wa-kam who had carried out the renovation work confirmed he had left the site secure at about 6 pm on 30 March.  He confirmed that exhibits E1 to E14 inclusive were his property and valued at about $3,000. 

8.  You admitted to seven previous convictions on five occasions, one of which involved dishonesty.  I noted that these convictions appeared to be for minor matters given the sentences involved. 

9.  On your behalf, Mr Chan submitted written and oral mitigation.  He told me that you are 38 years of age, educated to primary level, married with a wife in the Mainland, and you had worked as a construction worker earning about $5,000 a month prior to your arrest.  In mitigation he pointed out that at the scene you were very cooperative with the police, all goods were recovered and that you were motivated by economic necessity.  That whilst you do have previous convictions they are for minor offences and only one involved dishonesty. 

10.  He then referred me to the sentencing authority of HKSAR v Yeung Kwok Sang CACC420/06.  What that authority said is that where the domestic premises were not occupied and undergoing renovation they should be treated as non-domestic premises for the purpose of sentence.  Clearly, from the fact and photographs produced that is the case here.  Mr Wong, with his customary fairness considered this point on behalf of the prosecution. 

11.  I turn now to the sentence.  I accept that you were cooperative with the police at the scene and at the station; that all goods stolen were recovered and that your record is a light record.  As I have said, though this involves a house it was unoccupied and under renovation and should be treated as non-domestic property.  In all the circumstances I take a starting point of 30 months imprisonment, reduced to 20 for your plea of guilty.  You will go to prison for 20 months.