HKSAR v. YUEN KONG YUEN

DCCC689/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 689 OF 2012

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to two charges of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance.

2.  You have admitted that on 25 June, on two separate occasions at two different times, you entered as a trespasser part of a building which was the ground floor of No.121 Parkes Street, Yau Ma Tei.

3.  As for the first charge, you stole four water pipes and for the second charge, you stole two water meters.

4.  These were two burglaries of the same premises:  The burglary the in 1st charge occurred at about 11.30 am and for the 2nd charge, that occurred at about 3 pm.

5.  The premises in question were unoccupied it had formerly been a restaurant.  The premises former tenant had moved out and the premises was available for lease at the material time.

6.  At the back of the restaurant, there was a small back yard without a ceiling which housed the stolen property; that is, the water meters and the water pipes.

7.  This small back area was bordering onto a rear lane.  It was surrounded by a fence which was erected on top of the walls of the small room.  Part of the fences were broken.  At the material time, there was a hole in the fence which was large enough for a person to climb through.

8.  There was a door connecting that small room with the rear lane; that was locked.  The main door of the restaurant was also locked.

9.  The upper part of the building at 121 Parkes Street was for residential use.

10.  At about 11.30 am, a resident of the building opposite the premises saw somebody pulling water pipes installed at the back yard of the premises.

11.  That resident then saw the same person climbing out over the wall to the rear lane with two water pipes and go away.

12.  At about 3 pm that day, that same resident saw the same a male, that is you  go back to the back yard again and begin pulling more water pipes.

13.  The resident then told a decoration worker.  The decoration worker then saw you climb out from the premises through the broken fence.

14.  The police were called and you were located at the rear staircase on the 7th floor of No.119 Parkes Street.

15.  You were arrested and cautioned.

16.  In an interview later that day, you admitted that at 11.30 am that morning you had no money and therefore you walked to the rear lane of the premises. That by chance was near to your home.

17.  You climbed the pipes installed on the outside of the building to enter the premises and dismantled four water pipes inside the premises with your bare hands.

18.  That day at 11.30 am, you took away two water pipes and sold them for $48.

19.  At about 3 pm the same day when you were arrested, you went back to the premises intending to steal more water pipes and the water meters.

20.  You had already dismantled the two water meters and placed them in a platform above the back yard before the police had come.

21.  As a result of your dismantling the water pipes and meters, the water supply of the building at 121 Parkes Street was affected and the residents paid $6,300 for the repairs.

22.  I have taken into regard all the mitigation advanced by Mr Raymond Ng, your solicitor, today.

23.  You are 59 years of age. 

24.  You have 38 previous convictions, of which nine counts are of burglary; that is, similar to the present offences.  Your last conviction was on 30 November 2010 for burglary, to which you were sentenced to 16 months’ imprisonment and you were discharged from prison in August 2011.

25.  Mr Ng has informed me that the reason for your commission of this offence is because you had no money and you needed money to buy food.  You were at the material time relying on CSSA for your daily living.

26.  You were at the material time living close by; that is, at 133 Parkes Street.  You are single and alone with no relatives or family.

27.  Mr Ng has urged upon me to take into account the fact that you are an old man, poverty stricken and committed this crime out of need.

28.  He accepts that the usual guideline of 2½ years is appropriate.

29.  Whilst mitigating, Mr Ng referred has referred me to your last burglary offence, to which Mr Ng rightly recognised that the judge only passed a 16-month sentence, which was not according to the usual guidelines.

30.  My interpreter has read in open court the full reasons for sentence in that case today before me and that case, in my view, is clearly distinguishable from the case before me.

31.  In that case, the court seemed to accept that the premises burgled was an unoccupied premises under the Urban Renewal Authority, thus ready for redevelopment and falling outside of the usual guidelines.

32.  The court had also considered raising the starting point on the basis of the defendant’s previous record but did not do so because the defendant committed this crime differently from the other burglary cases, which I understand him to mean was a pure opportunistic crime.

33.  In that case, the defendant said he went to the building, he passed the building concerned, saw there was an unoccupied flat, entered the building and stole one copper pipe of about 2 feet long.  You had not brought any tools along to commit the crime and dismantled the section of copper pipe with your bare hands.

34.  The judge in that case took a starting point of 2 years’ imprisonment and gave you the one-third discount and reduced the term to 16 months.

35.  In this case, although the premises were unoccupied, it was unoccupied because it was waiting to be re-leased.  It was not unoccupied under the Urban Renewal Authority, which are buildings ready to be knocked down usually for redevelopment.

36.  In this case, similar type of goods were stolen as in the last burglary case, that is pipes, although defendant in these offences you also did not take tools with you and used your bare hands.

37.  I would not categorise this as an opportunistic crime.

38.  Mr Ng has mitigated on the basis that you defendant are poor and in need of money for food, and therefore, you burgled these premises.

39.  Poverty is no reason to commit a crime and is not a reason for me to reduce any sentence.

40.  The defendant you are not old; you are 59 years of age.  In fact, Mr Ng himself admits that he is older than you defendant.

41.  Defendant as can be seen from your record, you are a recidivist.  This is your 10th offence for burglary.  These offences were committed 10 months after you were released from prison, you committed exactly the same type of offence.

42.  In view of your previous similar convictions and the fact that you committed this offence shortly after you were released from prison, these are aggravating factors to which the starting point of your sentence should be increased.

43.  Defendant, this was a commercial premises and the usual starting point for commercial premises is one of 2½ years’ or 30 months’ imprisonment after trial.

44.  In view of the aggravating factors of your previous criminal record, I increase the starting point by three months to one of 33 months’ imprisonment.

45.  Your strongest mitigating factor is your plea of guilty.  I shall give you the usual one-third discount.  That means that you will be sentenced to 22 months’ imprisonment for each charge.

46.  I accept Mr Ng’s mitigation that, in fact, these two offences were committed on the same day and a few hours apart and at the same place.  In those circumstances, I consider the principle of totality and both terms shall run concurrent to each other.

47.  That means you will be sentenced to a total of 22 months; that is, 1 year and 10 months’ imprisonment.