HKSAR v. CHING YIU WOON

DCCC 713/1991

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 713 OF 1991

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REASONS FOR SENTENCE

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1.  The defendant was jointly charged with Yiu Kam Hing (D1) for one count of Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. The defendant pleaded guilty and admitted the facts, he was convicted accordingly.

Facts

2.  The showroom of Pack Pal International Limited was located at Mongkok.  On 8 June 1991 Mr Kwan, the manager of the company locked the showroom and left.  The showroom was burgled in the early hours of 9 June 1991 (Sunday).  Upon return on 10 June 1991 Mr Kwan found the showroom had been broken into and ransacked, electrical equipment and tools to the value of $2,122,611.40 were missing. The rear door of the showroom was also prized open.

3.  On 14 June 1991, two police officers on duty at Sun Tsui Estate, Shatin, noticed the defendant and another man conveying a number of cartons of goods by metal handcart.  Upon further investigation, later on the same day, the officers went to 13^th floor of Sun Fong House and found D1 moving some cartons into Room 1371.  The officers entered the premises and found the defendant and another man “Chan” hiding in the kitchen.

4.  Goods stolen from Pack Pal was found inside Room 1371 and returned to the owner on 15 June 1991.  Goods valued at $560,922.30 were never recovered.

5.  The defendant was arrested for burglary.  In a subsequent interview the defendant admitted under caution:-

(1) He committed the offence together with D1, Chan and a man named Ah Keung.

(2) D1 suggested to burgle a metal ware shop on 8 June 1991.

(3) They went to Pack Pal at around 6:00 pm on the same day for a site-visit.

(4) On 9 June 1991 at around 4:00 am they met again in the vicinity of Pack Pal.

(5) He acted as a look-out while the others attempted to break open the front entrance.

(6) After the others opened the front entrance door, he went inside with the others. They removed the goods through the rear door and loaded them on a van.

(7) They drove back to Sun Fong House and kept the goods inside Room 1371.

6.  On 16 August 1991 the bail of the defendant and D1 were extended pending for trial on 12 February 1992.  Both of them failed to turn up for their trial.  Warrant of arrest was issued.  The defendant’s cash bail in the sum of $25,000 was estreated on 12 March 1997.

7.  D1 was re-arrested on 23 June 1992 and he was tried alone for the offence of burglary.  D1 was convicted upon his own plea to an alternative charge of handling and was sentenced to 2 years and 9 months’ imprisonment.

8.  On 10 April 2017, the defendant surrendered himself to Mongkok Police Station.

Mitigation

9.  The defendant aged 56, he was single but had a son.  The defendant was a transportation worker at time of his arrest in 1991 and he worked and lived near the border in a recycle factory during the time of his absconding.  Before he absconded in 1992, the defendant had 4 previous convictions with 6 counts, including 1 robbery in 1983 and 1 possession of instrument fit for unlawful purpose in 1986.  He surrendered himself to the police upon his son’s repeatedly advice and request.  The son has written a mitigation letter for his father.

10.  Mr Ma for the defendant acknowledged that the existence of aggravating features in the present case but submitted that the observation of the sentencing judge for D1 that the present burglary warrants a starting point of 5-6 years is too excessive and not binding on me.  Further, Mr Ma conceded that the defendant could not expect to get 1/3 discount for his plea but urged me to allow him 25% discount for his plea.

Sentence

11.  The Court of Appeal stated in HKSAR v Sim Ka Wing CACC 450/2000that the conventional starting-point of 2.5 years’ imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features.  Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point.  The conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value.

12.  Yeung JA, as he then was, said in HKSAR v Cheng Wai Kwai CACC338 & 339/2007:-

“The proper starting point for sentence in a case of burglary of non-domestic premises is 30 months’ imprisonment (see Rv Wong Man unreported, CACC 372/1992). The starting point can be adjusted upwards if there are aggravating circumstances such as: (1) the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous conviction of similar nature, and (6) the offender commits multiple offences.”

13.  In the present case five days after the burglary, police at Shatin saw men pushing cart upon which were items which had been stolen from Mongkok.  The original loss resulting from the burglary amounted to $2,122,611.40 in 1991 and goods valued at $560,922.30 were never recovered.  About 1,500 items/units of goods were stolen.  A very large amount by any standards.

14.  This burglary as admitted by the defendant under caution and the subsequent disposal of the goods showed that it was a highly organized and sophisticated operation.  The burglary was carefully planned and skilfully executed in early hours on a Sunday, a van was arranged to convey the stolen goods.  The burglary was committed by no less than 4 people and targeted at a showroom stored with property of substantial value.  Damages were caused to the doors of the showroom.  Stolen goods of value over $560,000 had been disposed of within 5 days.  The defendant had 1 previous conviction of robbery and one conviction for possession of instrument fit for unlawful purpose.  The defendant was not just an opportunist.  I consider the appropriate starting point is 4 years’ imprisonment.

15.  The defendant failed to turn up for his trial on 12 February 1992 and had absconded over 25 years.  Should the defendant be charged for failure to surrender to custody he would expect to receive an additional sentence of 6 months’ imprisonment.  The defendant has caused serious delay in the disposal of his case, he could not expect to receive the same discount as the co-defendant for his plea of guilty at this late stage. The defendant would be given 25% discount for his plea.  I do not consider there to be any mitigating factor called for further deduction.

Order

16.  The defendant is sentenced to 36 months’ imprisonment.