HKSAR v. YUEN KA KUI

DCCC 149/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 149 OF 2015

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REASONS FOR SENTENCE

1. The defendant pleaded guilty to a charge of "Burglary". The burgled premises are a rental mini storage room within a warehouse.

Summary of Facts

2. Since February 2012, Mr. CHARM (PW1) started to rent a mini storage room ("the Storage Room") of a warehouse, particulars of which are pleaded in the Charge.  He stored about 2,000 game discs there.  The game discs were unsold merchandise of his closed business.

3. On 28 March 2014, PW1 went to the Storage Room.  He saw signs of ransacking and discovered 200 game discs (valued at $20,000 in total) missing.  No prizing marks or damage were found on the door of the Storage Room.  The incident was reported to the Police.

4. The Police soon arrived at the scene.  A cigarette butt was found on a nylon bag placed inside the Storage Room.  Upon forensic examination, the defendant's DNA was found on the cigarette butt.

5. The defendant was arrested on 9 December 2014.  His residence was searched on the following day. A total of 18 game discs were found at his home.  Under caution, the defendant admitted that he had stolen the game discs by climbing into the Storage Room. He kept the game discs at home since he was unable to sell them.  

6. PW1 later confirmed that the game discs seized from the defendant's home being part of the missing discs.

7. In his video-recorded interview, the defendant admitted, inter alia, that from January to March 2014, he lived a few floors below the Storage Room.  One day in March 2014, he went up to the 9^th Floor (where the Storage Room was situated) to pick up abandoned items for re-sale.  He saw a male going into the warehouse by entering a 4-digit security code.  The defendant went into the warehouse using the same code.  He used a wooden ladder found nearby to climb over the partition of the Storage Room.  He then stole 80-90 game discs.  He was able to sell 60-70 stolen discs for a total sum of $2,000.  He also admitted that the cigarette butt found in the Storage Room was left behind by him.

Mitigation & Sentence

8. The defendant is 36 and has 15 conviction records, which include 1 "Burglary" offence, 5 "Theft" offences and numerous drug-related offences.  Defence counsel Mr. YU informed me that although the defendant is single, he has a daughter (aged 15 months).

9. Mr. YU submitted that the defendant had a drug-addict father who would physically abuse the defendant's mother.  The defendant left school after F.2 and began to work.  On 5 March 2014, the defendant became a father.  In March 2015, the defendant was denied bail in the present case.  Subsequently, the defendant's girlfriend (the mother of his daughter) met another man and left their daughter with the defendant's mother.  The defendant's mother was unable to look after the baby girl.  The defendant's daughter is now placed in Po Leung Kuk.

10. In mitigation, Mr. YU submitted that the present offence was not a premeditated burglary; the defendant was merely an "opportunistic thief".  No tools or weapons were used and he acted alone. Furthermore, the defendant had only stolen from 1 cubicle in the warehouse and did not steal all the game discs from the Storage Room.  The stolen game discs are leftover merchandise; they are outdated and of little commercial value.

11. The normal starting point for non-domestic burglary is 2.5 years' imprisonment.  The defendant has been in trouble with the law continuously since his teenage years.  His 1^st criminal conviction (which happened to be a "Burglary" offence) is dated 1993 (when he was only 15).  Based on his criminal records, I have very strong reasons to believe that the defendant committed his subsequent "Theft" offences owing to his drug habit.  I do not regard the present offence as an "opportunistic burglary".  The value of the stolen properties may be insignificant; the defendant clearly took the trouble to learn the security code of the warehouse.  I accept that there may not be any aggravating factors in the present case, but likewise, there are no special reasons which can justify a lower than usual starting point.

12. Mr. YU has done all he could to mitigate on behalf of the defendant.  I will adopt the usual starting point of 2.5 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 20 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 20 months' imprisonment.