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DCCC 1045/2016
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1045 OF 2016
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| Before: |
H.H. Judge G. Lam |
| Present: |
Mr. Vincent LEE, PP, of the Department of Justice, for HKSAR.
Mr. YIU Kwai Hung of M/s Rita Law & Co., assigned by the Director of Legal Aid, for the defendant.
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| Offences: |
(1) & (2) Burglary（入屋犯法） |
REASONS FOR SENTENCE
1. The defendant pleaded guilty to 2 charges of "Burglary". He came to Hong Kong from the mainland and burgled the same construction site twice within 4 days.
Summary of Facts
2. The subject premises of both offences were the construction site of a high rise residential building situated above the MTR Nam Cheong Station ("the Building"). Access to the construction site was restricted to authorized personnel only.
Charge 1
3. About 3:40 a.m. on 11 September 2016, security guard Mr. DOM (PW1) and his colleague were patrolling the Building. When they reached the 2nd Floor, PW1 saw the defendant running towards the 1st Floor. After a short pursuit, the defendant disappeared.
4. PW1 returned to the 2nd Floor. He found a black rucksack and some tools lying on the floor. The rucksack contained 82 pieces of copper pipe (which belong to a subcontractor of the construction site) and the tools were a cutter and a green electric screwdriver.
5. PW1 also discovered a 0.5-metre opening on the 1st Floor, which was big enough for people to pass through.
6. CCTV footage of the Building captured the defendant tampering with the copper pipes stored on the 2nd Floor and moving them around between 1:40 a.m. and 3:42 a.m. on 11 September 2016.
Charge 2
7. About 4:05 a.m. on 15 September 2016, whilst patrolling outside the construction site, security guard Mr. FONG (PW2) heard some noises emitting from the partition walls. Colleagues who were monitoring the CCTV cameras informed him that there was a man wearing black on the 2nd Floor of the Building. PW2 called the Police.
8. Police officers soon arrived at the construction site. Upon search, they found the defendant near a staircase on the 1st Floor of the Building. The defendant first claimed that he entered the construction site to find a friend. Under caution, he claimed that he was sleeping there.
9. PW1 was later invited to return to the construction site. Upon arrival, he positively identified the defendant as the man whom he saw on 11 September 2016.
Video Recorded Interview
10. Regarding Charge 1, the defendant claimed that he came to Hong Kong to visit his cousin but was unable to find him. He was sleeping somewhere outdoor in the early hours on 11 September 2016.
11. Regarding Charge 2, the defendant claimed that his bag got stolen. On the day of his arrest, he entered the construction site to sleep. He knew that there was a place on the 1st Floor of the Building which was not locked or blocked. He also knew that he would not be allowed to enter the construction site through its main entrance.
Mitigation & Sentence
12. The defendant is 33 and has a clear record. He is a mainland resident. He came to Hong Kong on 10 September 2016. Defence lawyer Mr. YIU informed me that the defendant is the only child in his family.
13. In mitigation, Mr. YIU submitted that prior to the present offences, the defendant's father was admitted to the hospital. The defendant then phoned his cousin in Hong Kong to demand repayment of a debt. His cousin asked him to come to Hong Kong to collect the debt. Upon arrival at Hong Kong, the defendant was unable to reach his cousin. He had no money to pay for a hotel room. He therefore decided to sleep at the construction site. Until the date of the 2nd offence, the defendant was still unable to reach his cousin. Mr. YIU stressed that no one was alarmed or has suffered any loss; and there was no breaking in either. A letter written by the defendant was placed before me; its contents are duly noted.
14. The defendant's father may well be sick, but the evidence related to Charge 1 clearly shows that the defendant intended to steal the copper pipes from the construction site; and he did so on his 1st night in Hong Kong. I have little knowledge of the social welfare system in the mainland, but I can imagine that it may not be as comprehensive as in Hong Kong. Be that as it may, it is absolutely not an excuse for him to come to Hong Kong to commit crimes. The logic is absurd. Regardless of his reasons, the Hong Kong courtshave, time after time, expressedin very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime.
15. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. The defendant having burgled the same premises twice within 4 days can be regarded as an aggravating factor[1]. Having considered all relevant factors, I have decided not to raise the starting point for either charge.
16. I adopt a starting point of 2.5 years' imprisonment for each charge. With the guilty pleas, the sentence is reduced to 20 months each. Apart from this, I see no other mitigating factors which warrant any further reduction. The sentence for each charge is 20 months' imprisonment.
17. Bearing in mind the totality principle, I consider a global starting point of 33 months to be appropriate for both charges. With the guilty pleas, the overall sentence becomes 22 months. Hence, I order 2 months in Charge 2 to run consecutive to Charge 1; thereby arriving at a total prison term of 22 months.
[1] In HKSAR v CHENG Wai Kai CACC 338/2007, Yeung JA (as he then was) held "The starting point [for burglary of non-domestic premises] can be adjusted upwards if there are aggravating circumstances such as… (6) the offender commits multiple offences." (at para.15) Furthermore, the English Court of Appeal in R v Brewster & others [1998] 1 Cr.App.R.(S.) 181 held that repeated visits to the same premises constitute an aggravating feature in domestic burglaries. (pp.185 to 186)
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