HKSAR v. NG KAM YUEN AND ANOTHER

DCCC277/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 277 OF 2010

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Reasons for Sentence

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1.  D1 and D2 are jointly charged with 1 offence of "Burglary" (Charge 1). D1 also faces 1 charge of "Assaulting a police officer in the due execution of his duty", contrary to section 36(b) of the Offences against the Person Ordinance (Charge 2). They both pleaded guilty to the respective charges.

Summary of Facts

2.  At the material time, Madam WONG was residing at Flat C, 1/F, Kam Fong Mansion situated at Kam Fong Street, Mongkok.  Mr. LAU (PW1) was residing in a building opposite to Kam Fong Mansion. 

3.  Madam WONG left home at 4:30 pm on 9 January 2010. About 8:40 pm on the same day, PW1 saw from his home 2 men standing on Madam WONG's balcony; one of them was using a screwdriver to prize open a window. Later, a man climbed into Madam WONG's flat and opened the metal gate next to the window for the other man. PW1 immediately called the Police.

4.  PCs 3712, 2989 and 1975 (respectively PWs 3 to 5) were instructed to handle the matter. They arrived at Kam Fong Mansion and located Madam WONG's flat. PWs 3 and 4 first reached the balcony, where PW3 saw D1 and D2 rushing inside the flat and locking the metal gate from inside. PWs 3 to 5 then climbed into the flat through an open window.

5.  Upon entering Madam WONG's flat, PW3 saw D1 and D2 going into the master bedroom and locking the door. PWs 3 to 5 declared their police identity and asked D1 and D2 to come out. Despite repeated warnings, D1 and D2 still refused to open the door. PW3 kicked open the door, upon which D1 rushed towards PW5 and pushed his chest, causing PW5 to fall onto the floor, thereby twisting his left ankle. D1 and D2 then rushed towards PWs 3 and 4. PWs 3 and 4 managed to subdue them. PW5 was sent to the hospital for treatment. He had tenderness and swelling on his left ankle and was granted 4 days sick leave.

6.  Madam WONG later returned to her flat. The place was ransacked but she suffered no loss. The following items were found inside her flat :

(i)  1 rucksack ("P10") containing 1 binoculars, 1 torch, 1 wrist guard, 2 bunches of string and several plastic bags;

(ii)  1 rucksack ("P39") containing 3 gloves and 1 plastic knife;

(iii)  3 gloves;

(iv)  2 masks;

(v)  1 torch; and

(vi)  1 screwdriver.

Madam WONG confirmed that none of the above items belonged to her.

7.  In his video interview, D1 admitted under caution that he knew D2. He refused to answer all other questions.

8.  Under caution, D2 admitted in his video interview that he did not know D1's full name and only called him "Ah Yuen". He walked past the scene and went inside to steal after confirming there was no one inside. He and D1 reached the balcony by climbing the water pipe at the rear lane. He entered the flat through the metal gate. When he saw Police on the balcony, he and D1 went inside the flat, but did not steal anything. D2 confirmed that rucksack P39 and its contents belonged to him, whereas rucksack P10 belonged to D1.

Mitigation & Sentence

9.  D1 is now 48. He has 14 conviction records which include 8 offences of "Burglary", 1 offence of "Robbery" and some "Theft" offences. He also has 2 previous convictions which are similar to Charge 2. D1 is married with 4 children (2 are adults and the youngest 2 are 14 and 13 years old). He works as a decoration worker earning $8,000 per month. Defence counsel Mr. WONG explained that D1 committed Charge 1 because he was in need of RMB100,000 to pay for his father's lung cancer surgery. D1's letter and some medical bills were submitted.

10.  D2 is now 49. He has 1 dissimilar conviction, which is dated 1988. He and his wife are separated, with divorce in progress. They have an adult daughter studying in Australia. D2 is a decoration worker earning $10,000 per month. Mr. WONG submitted that D2 committed Charge 1 because he was in need of RMB35,000 to pay for his father's eye operation.

11.  Time after time, the court has expressed in very clear terms that having a sick family member is no mitigating factor for committing a crime. I cannot stress this message enough. The normal starting point for domestic burglary is 3 years imprisonment. D1's previous records render him a "repeated offender", which is an aggravating factor in terms of sentencing. In my view, his sentence must carry a deterring element. In other words, a higher than normal starting point is required. For Charge 1, the appropriate starting point is 3.5 years for D1, and 3 years for D2. One-third discount is given for their guilty pleas, reducing the sentences to 2 years and 4 months (28 months) and 2 years respectively. Apart from this, I see no other mitigating factors which warrant any further reduction.

12.  For Charge 2, D1 is no stranger to the section 36(b) offence either, although he was charged with "resisting" on the previous 2 occasions. In the present case, he deliberately charged at PW5, causing him to fall and twist his ankle. This is a serious matter. An immediate custodial sentence is required. I adopt a starting point of 4.5 months imprisonment. One-third discount is given for his guilty plea, reducing the sentence to 3 months. Apart from this, I see no other mitigating factors which warrant any further reduction.

13.  In my view, Charges 1 and 2 are separate and distinct. Charge 2 could have been completely avoided had D1 obeyed the Police command to open up and surrendered himself. Notwithstanding the totality principle, I consider it just and appropriate to order the 2 sentences to be served consecutively.

14.  To sum up, D1 is sentenced to 2 years and 4 months imprisonment for Charge 1, and 3 months for Charge 2. The sentences for both charges will run consecutively, thus arriving at a total prison term of 2 years and 7 months. D2 is sentenced to 2 years imprisonment for Charge 1.