HKSAR v. WONG YUK LEUNG

DCCC 390/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 390 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one charge of burglary, contrary to section 11 of the Theft Ordinance, Cap 210.

2.  On 15 March 2016, the defendant burgled a neighbour living in Room 401 and stole a ring.  After he stole that ring, he pawned it for $600.

3.  The facts of this case are straightforward.  The victim left home that morning at about half past 9.  He was in a hurry.  He left the wooden main door ajar, but closed the iron grille of his home.

4.  He returned home later that evening and found that his home had been ransacked.  The drawers were open and his wardrobe doors were open.  Obviously they had been opened to see what was inside them and if there was anything of value.

5.  He confirmed that a platinum ring and a pair of trousers had been stolen.  He said their value, in total, was $900.

6.  The case was reported to the police.

7.  The defendant lived at Room 417 of the same building, same floor.

8.  Three days after this burglary, police were on anti-burglary patrol in that building.  They saw the defendant coming out from a fire door and thought he was suspicious.  They intercepted him.

9.  After he was intercepted, the defendant confessed to the burglary of Room 401 three days earlier.  He said he had stolen a ring. 

10.  He was arrested, cautioned and frankly admitted he committed the burglary because he was unemployed and needed money.  In a subsequent video-recorded interview he told the police that after dinner that evening he had gone outside for a cigarette.  He would have had to go to Room 417 to see that the door was open.  He said that the main gate was open.  He went in because he needed money.  He stole the ring, which he said was on a table, and pawned it later that day for $600.  He denied stealing any trousers.

11.  The police found CCTV footage from the lift of that building showing the defendant trying to put on a ring on his right hand at about 7.30 on the night of the burglary. 

12.  There was no evident damage to the iron gate.

13.  The defendant's plea of guilty is his best mitigation.  Mr Kwan has said all he can on behalf of the defendant in mitigation.  The defendant is 35 years old, single, and living with his family.  I have had a letter from the defendant expressing his remorse.  He is grateful that his family are still supportive of him, and he wants to make amends and look after his parents.

14.  The defendant is not a man with a clear record. He had 32 previous convictions obtained over 14 court appearances.  Eight convictions relate to dishonesty.  Others involve triad society offences, trafficking in dangerous drugs, and assault.  His last conviction was in 2010. Prior to that, it was 2003, when he was sentenced to 5 years' imprisonment, for trafficking in dangerous drugs, in the High Court.

15.  The usual starting point for a domestic premises burglary is one of 3 years' imprisonment in the absence of mitigating or aggravating factors.

16.  Mr Kwan submits that there is no evidence the defendant planned this burglary.  He went out of his own home for a cigarette and saw the victim's door open.  The defendant needed money, so entered the premises.  He only took a ring.  It has been submitted that his actions were opportunistic and deserves a much lower starting point than the norm.  In fact, Mr Kwan submits a 15-month starting point would be appropriate instead of 36 months.  Mr Kwan has produced two authorities, HKSAR v Law Tin Yan CACC 258/2010 and HKSAR v Kwok Wing Kam CACC 394/2010.  That authority is in Chinese and has no translation.  That authority follows and relies on Law Tin Yan. 

17.  The facts of Law Tin Yan are that the victim of the burglary lived in a cubicle in a flat.  The appellant of that case lived in another cubicle.  The victim went on holiday and left his cubicle unattended.  There was no lock on these cubicles.  The appellant in that case knew his neighbour was away, entered his cubicle, and stole a packet of cigarettes.

18.  That appellant had a limited criminal record.

19.  I have been told that the authority of Kwok Wing Kam also involved a domestic premises where somebody lived, and that appellant entered and stole a drink.

20.  In Law Tin Yan, the Court of Appeal, despite holding a 15-month starting point appropriate, stressed that this is not the norm.  In fact, the Court of Appeal went to length to stress that there is no reason in principle why people's homes, whether they are wealthy or less affluent, should be treated any differently when it comes to sentencing.

21.  It was submitted to the Court of Appeal that that burglary was a technical commission of the offence of burglary in which no damage was done and low-value property was stolen, therefore the normal starting point was too high.  The Court of Appeal disagreed.  In that case, they said the burglary was not a mere technical burglary, which means in this case, even less a mere technical burglary.

22.  Here we have a home that is independent, has not only locks, but a door and a gate.  At paragraph 7 of that authority, Law Tin Yan, the Court of Appeal said:

"This was not a mere technical burglary. It comprised the invasion of private domestic premises in which the property of the occupant was disturbed to some degree. It was opportunistic only in the sense that the applicant knew that PW1 was away on holiday, and there was no damage caused because there was no lock."

23.  In this case, I do not agree that this burglary was purely opportunistic and less serious.  PW1 left with his grille closed and wooden door open.  From the photographs you can see his iron grille had slats. That grille could have been opened without damaging the lock.  In any event, just because the grille was not damaged does not mean the offence is less serious, and just because the defendant did not carry tools or pre-plan the burglary does not mean that it is a mitigating factor which attracts a lower starting point, and unlike Mr Law Tin-yan, the defendant has an appalling criminal record.

24.  However, I will take into account that it is the first burglary conviction.

25.  Defendant, please stand up.  As I have said, the best mitigation today is your plea of guilty, and there is compensation of $600 that has been paid into court for the victim.

26.  I have carefully considered submissions.  I did not find this case so similar to that of Law Tin Yan that a 15-month starting point is appropriate.

27.  I do consider the normal starting point of 3 years' imprisonment appropriate.  The defendant has pleaded guilty and is entitled to a discount of one-third.

28.  After that discount is applied, the sentence is one of 2 years' imprisonment.

29.  I will reduce that further by 4 months to reflect compensation paid before sentencing.

30.  Therefore, for this offence, the defendant is sentenced to 1 year and 8 months' imprisonment.