HKSAR v. PANG WAI MAN

DCCC 1069/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1069 OF 2013

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Reasons for Sentence

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1.  The defendant pleaded guilty to 6 charges of burglary, each contrary to s.11(1)(a) or (b) and (4) of the Theft Ordinance, Cap.210. All 6 premises being burgled were domestic premises.

Facts

Charge 1

2.  PW1 and his family resided at the charge 1 address. They left the premises at about 8pm on 4^th February 2013 after closing and locking all the windows and the door. They returned at about 9:45pm to find the place ransacked, with the grille of the toilet window damaged and the window opened. Valuables worth about $142,980 were stolen.

3.  CCTV recording of the adjacent building captured the defendant entering that building at about 8:43pm and left at about 9:11pm. A person could climb from the rooftop of the adjacent building to the rooftop of PW1's building.

Charge 2

4.  Subsequent to the arrest of the defendant for a later charge, he confessed in one of his cautioned video recorded interviews to entering the building in charge 2 on 8^th May 2013 with the intention to commit burglary there. CCTV footage of the building captured the defendant entering the lift on an unknown floor to go downstairs to the ground floor and left the building at around 8:55pm.

Charge 3

5.  PW3 and his girlfriend resided at the address in charge 3. At about 8:45 in the morning on 30^th May 2013, PW3 locked the wooden front door and the front gate of the premises and left. He returned the same night at about 8:30pm to find the wooden front door opened although the front gate was still closed. Valuables worth about $115,600 were found to have been stolen from the premises.

6.  CCTV recording of the building captured the defendant entering the building at about 3:17pm and left at about 3:35pm on the day of the burglary.

Charge 4

7.  PW4 resided at the charge 4 address. At about 7am on 25^th  June 2013, he locked the door of the premises and left. Upon returning home at about 11:45pm the same night, he found that the door was locked from the inside. A locksmith helped to open the door whereupon PW4 found his place had been ransacked. A window in the living room had been prized open. Valuables worth about $190,063 were stolen from the premises. Among them was a Panerai wrist watch which was later to be found in the possession of the defendant's brother when they were intercepted by the police on another day.

8.  CCTV recording of the building captured the defendant entering the building at about 8:29pm and left at about 9:04pm on that day.

Charge 5

9.  PW5 resided at the premises of charge 5. At about 7:30pm on 16^th July 2013, PW5 switched off the lights, locked the door and left the premises. He returned a few hours later at 10:54pm to find the front gate being locked from the inside. A locksmith helped him to gain entry whereupon he found that the mosquito net of an unlocked window was broken and some of the clothes had been moved. Nothing however was missing.

Charge 6

10.  PW6 is the owner of the premises in charge 6, which is a different flat on the same floor as the premises in charge 5. PW6 would usually stay here for 2 to 3 days a week. At noon on 14^th July, PW6 locked the door and closed all windows and left the premises. PW6 did not return until 3 days later on 19^th July when he found that a window in the washroom was opened and there were signs of ransacking. A notebook computer and bag that were left on a table was found to be missing. They were worth about $2,100.

11.  In relation to the building in charge 5 and 6, CCTV captured the defendant entering the lift of the building at about 7:31pm and leaving the building at around 8pm on 16th July 2013.

Arrest of the defendant

12.  As it so happened, at about 8pm on 16^th July, the defendant was intercepted outside a vehicle parked near the building development in charges 5 and 6 by police officers who were carrying out an anti-burglary operation in the vicinity. The defendant's brother and 2 other people were inside the vehicle.

13.  The defendant was carrying a shoulder bag and was holding the notebook computer and the bag that was later found to have been stolen from the premises in charge 6 in his right hand at the time. Upon search, a pair of gloves, one screwdriver and one torch was found in the shoulder bag. The defendant was arrested and cautioned. Under caution, the defendant admitted that he had just committed burglary at the floor of where the premises in charges 5 and 6 were located.

14.  Upon searching the defendant's brother, the police found him wearing the Panerai watch that was stolen from the premises in charge 4.

The Video Recorded Interviews

15.  In the 5 subsequent video recorded interviews, the defendant made various admissions. For charge 1, he confirmed he was the person captured in the CCTV footage, that he had entered the adjacent building, went up to the rooftop and climbed down to the other building, prized open a window to enter and then burgled the premises in charge 1. He put the stolen items into a plastic bag and had since sold them in mainland China.

16.  For charge 2, as mentioned above, the defendant confirmed he was the person captured in the CCTV footage entering the building. He entered the building because he intended to commit burglary therein.

17.  For charge 3, the defendant confirmed he was the person captured in the CCTV footage and that he had prized open a window to gain entry and stole a camera from the premises, which he had since sold in mainland China.

18.  For charge 4, the defendant confirmed he was the person captured in the CCTV footage. He had gained entry through a window, stole valuables including the Panerai watch and had put them into a backpack. He had since given the watch to his brother, telling him it was a gift from the defendant's friend, and had sold the other items in mainland China.

19.  For charges 5 and 6, the defendant claimed that he saw the lights on the 16th floor of block 8 were off and so he intended to commit burglary there. The defendant brought the gloves and a screwdriver, took the lift to the 14th floor, walked up the stairs to the rooftop, put on the gloves and climbed down the water pipes. He entered 2 flats on the day.

20.  In relation to charge 5, the defendant broke open the mosquito net, opened the window and entered the flat. In relation to charge 6, the defendant entered and burgled the premises, stealing the notebook computer and the bag therein.

Previous convictions

21.  The defendant has multiple previous convictions. He first transgressed the law in 1980 when he was 17 years old. He was sentenced to the Training Centre on that occasion. He however was not able to reform himself and was convicted of assault with intent to rob and robbery in 1982. He was sentenced to 3 and a half years' imprisonment for the robbery.

22.  The defendant was able to keep on the right side of the law until 1991 when he was 28 years old when he was convicted of 4 charges of burglary and sentenced to a total of 5 years' imprisonment.

23.  The defendant was apparently released before serving the full term because he was convicted of 7 charges of burglary in August 1995 and sentenced to another 5 years' imprisonment.

24.  In 1999, the defendant was convicted of 2 charges of burglary in June and October and was sentenced to 3 years and 18 months' imprisonment respectively.

25.  There was then a short break in his criminal activities until August 2006 when he was convicted of 6 charges of aggravated theft in Macau and sentenced by the court there to a total of 6 years and 9 months' imprisonment. The defendant was later returned to Hong Kong in 2009 to serve the remainder of that sentence here.

26.  The defendant was last released from prison on 12^th March 2012, 11 months before the commission of the first of the series of burglaries in our present case.

Mitigation

27.  The defendant is 50 years old and was educated in Hong Kong up to Primary 6 level. He is single now but has a 23 year old daughter from his previous relationship. The defendant has a close girlfriend who resides in mainland China. The defendant's mother is 76 years old and is living on CSSA.

28.  The defendant was unemployed at the time of the offences. Before that he had worked as a casual decoration worker earning about $6,000 per month. When the defendant was able to find work, he would contribute money to his mother.

29.  The defendant committed the offences due to financial hardship, he was not able to find a job and had no means to support his living. The defendant is remorseful and had fully cooperated with the police, admitted to all charges and saved everyone's time. All but one of the 6 offences were committed between 7 and 9pm. Charge 3 was committed in the afternoon. The defendant only entered when he saw that no one was inside the premises to prevent any possibility of confrontation. The defendant had acted alone. No great damage was done to the victimized premises. Although there are previous criminal records, his last conviction in Hong Kong was some 14 years ago in 1999. The defendant asks for a last chance and urges for a lenient sentence.

Sentencing guidelines

30.  It is trite law, and Mr. Arthur Chan for the defendant agrees, that for burglary of domestic premises, a starting point of 3 years' imprisonment is to be adopted in the absence of aggravating or mitigating factors.

Factors taken into consideration

31.  For the following reasons, I find that the individual burglaries were at the lower end of the spectrum of seriousness. The premises were all unoccupied at the time of the burglaries and the defendant had timed the burglaries so as to minimize the chance of someone being home. There was minimal force used in the entrance and the defendant stayed only a short time in each of the premises.

32.  On the other hand, the following I find to be aggravating factors against the defendant.

33.  First, the defendant is a repeated offender, the present convictions are his 14th to 19th conviction for burglary alone.

34.  Secondly, the 6 burglaries he committed in the present case took place between February and July, spanning a 5 month period, I find that if the defendant had not been caught, there is every indication that he would have carried on.

35.  Thirdly, the defendant did not limit his operation to one particular area of Hong Kong. Charge 1 was of premises in the mid-levels in Hong Kong, charge 2 was in Wanchai, charge 3 in North Point, charge 4 was back in the mid-levels, and charges 5 and 6 were in Tuen Mun. This scattered pattern would no doubt have made it more difficult for the police to make the connection that the burglaries were committed by the same person and thus making investigation of the burglaries that much harder.

36.  Lastly, I find that there was obviously planning and premeditation in the defendant's commission of the offences. He had definitely chosen his targets and had planned his entry carefully to avoid detection.

37.  Balancing both the factors for and against the defendant in his commission of the burglaries, I find that a proper starting point for each of the burglaries should still be that of 3 years' imprisonment. I find that the aggravating factors can and should be dealt with when applying the principle of totality.

38.  For each of the 6 charges, the defendant is sentenced to 2 years' imprisonment, subsequent to the usual one-third discount upon his plea of guilty.

Totality

39.  Bearing in mind the principle of totality, but taking into consideration the aggravating factors, I find that an overall sentence of 4 and a half years' imprisonment for all 6 charges is appropriate. I will order that 6 months of each of the charges 2, 3, 4, 5 and 6 be served consecutively to the sentence in charge 1, the balance to be served concurrently.

40.  The final sentence is therefore 2 years (charge 1) + 6 months (charge 2) + 6 months (charge 3) + 6 months (charge 4) + 6 months (charge 5) + 6 months (charge 6) = 4 years' and 6 months' imprisonment.