HKSAR v. WONG MUK YIM (aka HUANG MUYAN) AND ANOTHER

DCCC 1105/2022

[2023] HKDC 1694

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1105 OF 2022

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REASONS FOR SENTENCE

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D1 and D2 both pleaded guilty to a joint charge of "Conspiracy to burgle".

Summary of Facts

2.  The burgled premises were situated at 7^th Floor, 79 Ki Lung Street, Mongkok ("the Flat").  The Flat has been vacant since mid-2021.  It has 2 doors leading respectively to the front and back staircases of the building.  Mr. Tam (PW1)  was entrusted by the owners (his ex-wife and ex-stepson)  to look after the Flat.

3.  Two motion-activated CCTV cameras were installed at the Flat.  They would automatically start recording and notify PW1's ex-stepson by messages if any person enters the Flat.

4.  CCTV footage revealed that on 9 August 2022, D1 was in the Flat holding a spanner in his left hand at 12:51:53 hours.  He went behind the sofa appearing to be removing something. He was holding a CCTV camera with its cable dangling.  In the meantime, D2 entered the Flat to join D1.  D2 blocked a CCTV camera with a rucksack.

5.  About 1326 hours on the same day, PW1's ex-stepson informed PW1 that 2 unknown persons had entered the Flat.  PW1 then reported the matter to the Police.

6.  Some time later on the same day, PW1 arrived at the Flat with police officers.  He found the main door of the Flat having been unlocked and the 2 CCTV cameras missing (valued at $550 in total).

7.  On 10 August 2022, the Police put the Flat under observation with officers laying ambush in the vicinity.  About 1225 hours, outside the Flat's front door, police officers heard noises coming from inside.

Arrest

8.  About 1241 hours on the same day, D1 walked up from the 5^th Floor via the front staircase. Upon seeing the police officers, he immediately pretended to be looking for something in the rubbish bin placed at the staircase.  Considering D1's appearance matching one of the culprits captured in the CCTV footage, PC 19775 arrested him.

9.  About 1331 hours on the same day, PC 9115 (PW3)  was at the back staircase on the Ground Floor.  He heard noises and found D2 hiding in the vicinity.  PW3 cautioned D2.  D2 admitted having removed the CCTV cameras because he wanted to sleep in the Flat and the cameras were facing him.  He also admitted that he had just attended the Flat again on that day.

10.  PW3 escorted D2 to the Flat.  Upon search, PW3 found in D2's rucksack a bottle of preserved dates, a pack of angelica sinensis (commonly known as Dong Quai), a screwdriver and a door lock, all of which were later confirmed by PW1 to be properties taken from the Flat (valued at $1,540 in total).  Under caution, D2 admitted that after changing the door lock of the Flat, he took away the screwdriver and the door lock.  He also stole the preserved dates and angelica sinensis from the Flat.

11.  PW1 attended the Flat again 10 August 2022.  He found the door lock broken; and the television set (valued at $6,500)  having been moved to the floor and placed inside a canvas bag.

Admissions

12.  In his video recorded interview, D1 admitted having entered the Flat on 9 August 2022.  He took one of the CCTV cameras and put it in D2's rucksack as per D2's instructions.  D1 identified himself in the screen captures of the CCTV footage.  He went to the vicinity of the Flat on 10 August 2022 as instructed by D2.

13.  In his video recorded interview, D2 admitted having entered the Flat on 9 August 2022.  He identified himself in the screen captures of the CCTV footage.  He found the CCTV cameras facing him and felt scared, so he took them down and discarded them later.  He entered the Flat again on 10 August 2022 to change the door lock.  He put the television set in a canvas bag.  He was scared by the noises coming from the front door and escaped through the back door.  He then hid at the back staircase.

Mitigation

D1

14.  He is 42 and has 20 conviction records, which included 3 "Burglary" offences and 3 "Theft" offences.  His counsel Mr. Li informed me that D1 is single and resides with his parents.  D1 came to Hong Kong from the mainland in 1994. He was a construction worker earning $15,000 to $20,000 per month.  In mitigation, Mr. Li submitted that in August 2022, D1 was underemployed and his income dropped.  Mr. Li stressed that the Flat had been left vacant for quite some time, thus the risk of alarming any occupants was very low.  Mr. Li also submitted that when the defendants first entered the Flat, the door lock was already broken.  In other words, they did not break in by force.

D2

15.  He is 56 and has 8 conviction records, which included 1 "Burglary" offence and 6 theft-related offences.  His counsel Ms. Zahir informed me that D2 is divorced with no children.  He was unemployed at the time of the offence and relied on social welfare.  In mitigation, Ms. Zahir submitted that upon release from prison, D2 intends to work at his friend's cleaning company.  Similar to Mr. Li, Ms. Zahir also relies on the fact that the Flat was vacant and thus the risk of alarming any occupants was low.  Ms. Zahir further submitted that the present burglary was unsophisticated and did not involve careful planning or the use of tools for breaking in.

Sentence

16.  Even though the Flat was vacant and its door lock might have been broken, it did not in any way serve as an invitation for both defendants to go in to steal.  It is clearly an aggravating factor that D1 and D2 acted in concert.  They did not just enter the Flat once; they returned on the following day with a view to "finishing the job" and came apparently more prepared.

17.  I note that D1 has in his video recorded interview alleged D2 being the mastermind.  For the purpose of sentencing, I need not determine who asked whom to do what.  They might have played different roles, but they acted as a joint enterprise and are equally culpable.  There is no need to distinguish their roles or to apportion their culpability.

18.  The Flat being vacant was pure luck; the defendants did not know this fact beforehand.  I accept that the total value of the properties involved was not a significant sum; and, except the door lock (which was damaged)  and the 2 CCTV cameras (which were thrown away by D2), all items were recovered.  The normal starting point for domestic burglary is 3 years' imprisonment.  Bearing in mind that D1 and D2 acted in concert[1], I would increase the starting point to 37.5 months.

19.  D1 is no doubt a repeated offender.  He has 3 similar convictions and his last "Burglary" conviction is dated January 2021.  I would increase D1's starting point to 40.5 months.  With his timely guilty plea, the sentence is reduced to 27 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence D1 to 27 months' imprisonment.

20.  D2's criminal record is slightly better.  He has 1 similar conviction and it is dated September 2016.  I consider a starting point of 37.5 months' imprisonment appropriate and just for him.  With his timely guilty plea, the sentence is reduced to 25 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence D2 to 25 months' imprisonment.