HKSAR v. WONG WING HUNG AND OTHERS

DCCC 426/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 426 OF 2017

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REASONS FOR SENTENCE

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THE CHARGES

1.  D1 pleaded guilty to one charge of burglary of domestic premises (Charge 2) which was laid jointly against him and D2. He also pleaded guilty to one charge of theft (Charge 1).

2.  D2 pleaded guilty to a charge of burglary (Charge 2) and D3 pleaded guilty to a charge of handling stolen goods (Charge3).

THE FACTS

3.  On 26 February 2017, Ng Tze Kin (“PW1”) unlocked the gate and door of his residence at Flat C, 6^th Floor, No 87 Tai Po Road, Sham Shui Po, Kowloon, Hong Kong (the “Premises”) and went inside the Premises without removing a bundle of 5 keys (worth HK$50) (“E1”) from the lock of the door of the Premises.  E1 was missing when PW1 realized it the next morning.

4.  On 28 February 2017 at around 9:15 am, PW1 checked everything intact and left after he had secured the Premises.

5.  On the same day at around 5:15 pm, PW1 returned to the Premises and found it was ransacked. Properties of total value of HK$18,350 were missing from the Premises. Among the loss properties, there was a remote controlled model container truck worth HK$15,000(“E2”).

6.  CCTV inside the Premises captured D1 and D2 entered the Premises and stole from therein.

7.  On the same day at around 6:05 pm, D1 and D3 were intercepted for investigation outside Ground Floor of No 2 Yiu Tung Street, Sham Shui Po, Kowloon, Hong Kong (the “Building”).  E1 was seized from D1, and E2 was seized from D3.  D1 and D3 were then arrested.  Under caution, D1 admitted he acted as lookout for D2. D3 admitted he was told by D1 that E2 was stolen by D2, and D1 asked D3 to sell it. D3 agreed to do so.

8.  D2 was then arrested in 2^nd Floor of the Building.  Most of the stolen properties were seized from near where D2 was arrested.  Under caution at scene of arrest, D2 admitted he acted as lookout for D1 as D1 opened the Premises with key to burgle it, and helped D1 to move the stolen properties to where they were seized.

9.  In subsequent cautioned VRI, D1 confessed he picked up E1, and kept it, then burgled the Premises together with D2 using E1 to open the door of the Premises; D2 confessed he burgled the Premises together with D1; and D3 admitted he arrived upon the request of D1, he went to D2’s residence at 2 Yiu Tung Street. Then he would go to Mongkok with D1 by taxi.

PERSONAL BACKGROUND AND MITIGATION

D1

10.  D1 is 26 years old. Single. He lives with his parents and elder brother in a public housing estate in Lai King. He received up to F.2 education. He worked as a construction site worker. He submitted mitigation letters by himself and from his family asking for leniency from court. He promised that he would turn over a new leaf and be a law-abiding citizen.

11.  D1 has appeared in court on three occasions with 3 previous convictions. The last conviction of theft took place after the commission of the present offence. In order words, he has no previous conviction of similar nature at the time when he committed the present offences.

12.  According to D1, he went to the building of the Premises to visit his friend. By chance, he saw the bunch of keys and took them away out of greed. The defence urged the court to accept this case to be one of opportunistic burglary. 

13.  The defence also indicated that all the stolen properties were recovered except for the cash $100 and a hair clipper worth $600. D1 is willing to compensate the victim for his loss.

D2

14.  D2 is 42 years old. Single. He lives with his parents and siblings. He has a girlfriend. They have a son of 4 months old. At the time of arrest, D2 worked as a transportation worker. He acquainted himself with D1 in a game centre. He was told by D1 that he found the keys of the Premises. Out of greed, he committed the offence of burglary with D1. However, he was not the prime mover.

15.  D2 first transgressed the law in 1991. He has appeared in court on 13 occasions with 19 previous convictions. There are five convictions relating to theft. The last conviction of theft was in 2014.

16.  D2 has written a mitigation letter to the court stating that he is very remorseful now and he would like to take up the father’s responsibility to take care of his son. He had been co-operative with the police.

17.  Like D1, D2 is willing to compensate the victim for the loss of cash and the hair clipper. He will shoulder half of the compensation with D1.

D3

18.  D3 is 28 years old. He has a clear record. He was graduated from Shanghai University in China studying computer animation.

19.  D3 has a decent family background. His mother is a teacher and his father is an interior designer. His younger sister is now studying in Canada.

20.  Previously, D3 worked as a project manager in a decoration company for 5 years, earning RMB15,000. In April 2016, D3 was assigned with a motel decoration work. There he acquainted with D1 who was the representative of the motel. He was asked by D1 to sell a stolen item, E2. Out of stupidity, he agreed to assist. He has no knowledge that E2 was related to a burglary offence.

21.  D3 has quitted the job because he does not want to affect his company’s reputation. However, the company is willing to re-employ him after the court case. D3 submitted a letter from his employer. He finds that D3 is hardworking and responsible. He received compliments from the customers.

22.  D3 asks for a chance from court. He expressed through his counsel that he learnt a bitter lesson in this offence and promised not to re-offend again. The present conviction becomes a stain in his life.

SENTENCING CONSIDERATIONS

23.  In sentencing, I take into account the whole circumstances of the case, including its nature and facts, personal background of the defendants as well as mitigation put forward on their behalf by their lawyers. 

24.  For a domestic premises burglary, the usual starting point is 3 years’ imprisonment: Attorney General v Lui Kam Chi [1993] 1 HKC 215. 

25.  In the present case, D1 and D2, went into the Premises at the time. Clearly, the entry was a pre-planned and deliberate one. D1 kept the keys of the Premises and used the same when the opportunity arose. I do not accept that this was an opportunistic burglary.

D1 (Charge 1 and Charge 2)

26.  For Charge 1, I would adopt a starting point of 3 months. The sentence is reduced to 2 months’ imprisonment upon his plea.

27.  For Charge 2, I would still adopt a starting point of 3 years' imprisonment. With the guilty plea, the sentence is reduced to 2 years. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D1 to 2 years' imprisonment.

28.  Since the commission of the offences in Charge 1 and 2 arose out of the same set of facts. The sentence for Charge 1 and 2 be run concurrently. D1 is therefore sentenced to 2 years’ imprisonment.

D2 (Charge 2)

29.  In the light of the D2’s previous conviction record and having regard to HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, I am of the view that a higher than usual tariff starting point should be adopted.  I enhance the sentence for 3 months. In the end, I will take 39 months as the starting point, and with his plea, the sentence is reduced to 26 months’ imprisonment.

30.  I have noted that D2 wants to take up the responsibility to take care of his 4 months old son. However, D2 should have considered the consequence before he embarked on committing the offence. He was very much the author of his own misfortune.

D3 (Charge 3)

31.  There is no tariff for the offence of handling stolen goods. Each case must depend on its own facts.

32.  The facts showed that D1 and D2 were acting together and that D3 was assisting in disposing of E2. In my view, without the assistance of people like D3, those who committed the burglary would have difficulty in disposing the stolen items.

33.  Having considered the value of E2, I will take 6 months as the starting point. The sentence is reduced to 4 months’ imprisonment upon his plea.

34.  Having looked at all the circumstances and considered the clear record of D3, it seems to me that it will be appropriate to suspend the sentence for a period of two years. The sentence will be one of 4 months’ imprisonment but suspended for two years.