HKSAR v. CHAN YUEN SHING AND OTHERS

DCCC 433/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 433 OF 2014

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Reasons for Sentence

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1. D1, D2 and D3 have each pleaded guilty to one joint charge of non-domestic premises burglary.

2. The facts admitted by them reveal that between about 10.40 pm on 26 January 2014 and about 3 am on 27 January 2014, police officers on surveillance spotted D1 and D2 wandered outside a candy shop at Tai Ho Road, Tsuen Wan, New Territories (“the Shop”).  They met up with D3 several times in a nearby McDonald Restaurant (“the Restaurant”).  D1 and D2 kept on leaving and returning while D3 stayed inside the restaurant.  Finally, D1 and D2 returned to the restaurant to meet D3, and D1 was seen carrying a green plastic bag.

3. Police officers intercepted D1 to D3.  Upon search, the following items were found on D1: cash of $33,020 in the green plastic bag he was carrying; $24,000 in his jacket; $23,520 in his wallet; and three mobile phones. 

4. On D2 were found cash of $23,660 in his wallet; cash of $38,180 in his trousers pocket; and two mobile phones.

5. On D3 were also found cash of $10,000 and $38,500 in separate pockets of his jacket; $2,440 in his wallet; some coins in his trousers pocket; and two mobile phones. 

6. Under caution, D1 to D3 each admitted the offence.  D1 confessed he was responsible for getting the prising tools and entered the shop with D2; D3 was responsible for keeping watch; and they shared the money stolen in the restaurant.

7. D2 admitted pushing open the ventilation fan of the shop and prising open the cashier counter of the shop with D1.

8. D3 admitted he did keep watch and he shared the money stolen in the restaurant.

9. Staff members of the shop returned to the premises and found that the shop had been ransacked.  They confirmed that the money totalling about $180,000 placed inside cashier machines, a safe and a bucket separately were missing.  It was noticed that the ventilation fan inside the toilet of the shop had been dismantled, the safe had been prised open and the CCTV cameras had been pushed aside or blocked by items.

10. In the subsequent video-recorded interviews with D1, he stated, inter alia, that he met D2 and D3 in jail.  He bought the burglary tools in Tsuen Wan.  He met D2 and D3 in the restaurant to discuss the burglary plan on the evening.  He used tools including a plier, an orange wrench, an orange saw, a blue chisel and saw blades to burgle the shop. It took him an hour to prise open the ventilation fan and he entered the shop with D2. He bored a hole in the safe with D2 and they took the cash inside.  He divided the cash found inside the shop into three stacks in order to share it with D2 and D3.  While he and D2 were burgling the shop, D3 kept watch in the restaurant by sitting near the windows.  D3 would contact him and D2 if the police were found nearby.

11. In his video-recorded interviews, D2 stated, inter alia, that he met D1 in jail, but it was the first time he met D3.  He and D1 went to Tsuen Wan to purchase the prising tools.  He prised open the ventilation fan with D1 and they climbed into the shop through the slot they opened.  He and D1 prised open the safe. 

12. In the cautioned interviews of D3, he stated, inter alia, that D1 asked him to be a lookout on that evening.  He was instructed by D1 to sit near the windows inside the restaurant and he would contact D1 if he saw police officers pass by.  He knew D1 would prise open the ventilation fan in order to steal in the shop and the money seized from the pocket of his jacket was the stolen property.  He denied any knowledge of the burglary tools of the instant case.

13. D1 is aged 60.  He has a criminal record for 19 offences, out of which 17 were offences of dishonesty and 15 were burglaries. 

14. D2 is aged 59.  He has a criminal record for 18 offences, out of which 15 were offences of dishonesty and 11 were burglaries.

15. D3 is aged 68.  He has a criminal record of 42 offences, out of which most were offences of dishonesty and 17 were burglaries.

16. In mitigation, Mr Fu, counsel for D1 and D2, accepting that it was a case of joint enterprise, submits there were no aggravating factors in the case except that D1 and D2 were repeated offenders.

17. Mr Fu draws my attention to HKSAR v Tang Wing Cheung CACC 146/2002, relying on the Court of Appeal’s remark that an enhancement of sentence by as much as 50 per cent on account of the previous convictions of the defendant is wrong in principle.

18. That was a domestic burglary case.  The sentencing judge enhanced the starting point to 4½ years’ imprisonment because the defendant was a repeated offender.  The Court of Appeal was of the view that 3½ years’ imprisonment was a suitable starting point.

19. Mr Fu submits that the Court of Appeal only added 6 months to the usual starting point; he asks this court to adopt the same rate of enhancement.  It should be noted that that case was an opportunistic burglary case.

20. And as for D2, Mr Fu tells the court that he has high blood pressure and irregular heartbeat problem.  He now feels shameful and remorseful. 

21. Mr Fu further submits that the present case was not a sophisticated burglary.  Although tools were used in the commission of the offence, the tools were not heavy-duty type.  Although about $180,000 cash was stolen, there is no evidence that the trio had cased the shop before the burglary or that they knew the amount of money they could steal.

22. In mitigation for D3, his solicitor, Mr Chan, told the court that D3 is divorced.  He is living on public assistance.  He has heart disease and is suffering from rectal cancer. 

23. I have adjourned the case to call for a medical report of D3 which is now available confirming that D3 has carcinoma of rectum.  Operation by resection of rectum has been performed.  As a result, Mr Chan further tells the court that D3 is now wheelchair-bound, pending recovery. 

24. Mitigation letters written by D1, D2 and D2’s wife have been submitted to the court and well considered.  It is not necessary for me to repeat the contents, suffice it to say that the defendants say that they are now very remorseful.  They promised they would turn a new leaf after release from prison as their children have promised to take care of them.

25. The proper starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2½ years’ imprisonment.

26. In my view, there are aggravating features in this case.  The three defendants were acting in concert in the commission of the offence.  Tools had been bought and used.  Ventilation fan was forced open and a safe was prised open.  Although there was no evidence of the knowledge of amount of money they could steal, the amount of cash actually stolen was large indeed.  Fortunately, all the stolen money was recovered.

27. The offence was committed over a period of hours.  And, more importantly, all the three defendants have appalling criminal record.  They are properly regarded as persistent offenders.  It is clear that the past sentences imposed on them did not succeed in deterring them from burgling into premises.

28. D1 and D2 last committed burglary in the same case and sentenced to 26 months’ imprisonment on 24 September 2012.  They were released from prison on 24 October 2013.  After only three months, they committed the present offence together again. 

29. Taking into account all the circumstances of the case, their previous criminal record and personal circumstances of D1 and D2, I find 3½ years’ imprisonment as the appropriate starting point for them. 

30. I did not find any effective mitigating factors in their mitigation except their plea of guilty for which I will give the full one-third reduction.  Their financial and family circumstances and their health condition do not constitute any effective mitigating factors. 

31. D1 and D2 are each sentenced to 2 years and 4 months’ imprisonment.

32. D3 did not climb into the shop.  He only acted as a lookout.  He is 68 and is suffering from rectal cancer.  Having considered all the circumstances, I would use 3 years and 3 months as the starting point. He will get one-third reduction for his plea of guilty.  D3 is therefore sentenced to 2 years and 2 months’ imprisonment.