HKSAR v. CHANG WING HON AND ANOTHER

DCCC591/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 591 OF 2011

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Reasons for Sentence

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1.  There are two defendants in this case. Each one of them was convicted upon his own plea and admission of facts of Charges 1 and 2. Each charge is for the offence of burglary, contrary to section 11(1)(b) & (4) of the Theft Ordinance, Cap.210, Laws of Hong Kong.

Facts

2.  The two offences took place inside two residential  buildings situated respectively at Nos.62 to 64 Main Street, Ap Lei Chau, Aberdeen, Hong Kong (hereinafter called “Building A”) and at Nos.66 to 68 Main Street (hereinafter called “Building B”).  Each one of them was six-storey in height and was at all material times vacant pending redevelopment.     

3.  These two buildings and the property inside belonged to Richfield Realty Limited.  These two buildings were adjacent to one another, but with separate entrances and one could not go directly from Building A to Building B.  The main entrances of these two buildings were not locked but there was a banner warning against any unauthorised entry.  The flats inside each building was however properly locked and sealed. 

4.  On 23 April 2011 at about 5.15 pm, police received a report that there were two males acting suspiciously inside Building B.

5.  Upon investigation the police found D2 at the Mezzanine Floor of Building B and D2 was putting some copper pipes into a nylon bag.  The police also found some scrap metals (including water taps etc.) inside the nylon bag and a copper pipe cutter inside the left pocket of D2’s jacket.  Upon enquiry, D2 stated that he had used the copper pipe cutter to cut the copper pipes for sale.  D2 was arrested and cautioned.  Under caution he stated that he had cut the copper pipes from the flats upstairs to earn some money as he knew the flats were vacated.

6.  The police also found D1 on the first floor of Building B when D1 was putting some electric wires into a nylon bag.  Upon search two screwdrivers, one pliers and one side cutter were found from the rear right pocket of D1’s trousers.  Upon enquiry, D1 stated that he had cut and taken the electric wires from Building A.  He was then arrested and cautioned. Under caution D1 begged for a chance and said that he was only stealing electric wires to earn a living.

7.  In the subsequent video recorded interviews, D1 admitted under caution that he met up with D2 at 4.30 pm on 23 April 2011 to steal together.  They entered Building A to steal electric wires and Building B to steal copper pipes.  He brought along the tools found on him to assist him in the stealing.    

8.  D2 admitted under caution that he met up with D1 at 10.00 am on 23 April 2011 to steal together.  He entered Building A and Building B to steal.  He had used the copper pipe cutter seized from him to steal copper pipes and he intended to sell the stolen property and share the proceeds of sale with D1.

9.  Police investigation revealed that 9 meters of electric wires were stolen from Building A and 31.7 kilograms of copper pipes and scrap metals were stolen from Building B. The estimated value of the stolen property is $5,420.  The police also found prised marks on the doors of some of the flats in Building B.    

Criminal Record

10.  D1 has 9 previous convictions involving a total of 15 charges.  He had no previous convictions for the offence of burglary.  His last conviction was in June 2009 when he was fined $2,000 for fighting in a public place.  His last incarceration was in November 2007 when he was sentenced to DATC for possession of dangerous drugs.

11.  D2 has 19 previous convictions involving a total of 22 charges, including two convictions for burglary and one conviction for attempted burglary.  His other convictions mostly related to offences of dishonesty and possession of dangerous drugs.  He was sentenced to 2 years’ imprisonment in 2004 for his last offence of burglary.  His last conviction was in May 2009 when he was sentenced to 2 months’ imprisonment for possession of dangerous drugs.

Personal and family background

12.  D1 is 34 years old, single, he lives with his family including two elder sisters and one younger brother.  He completed just primary education; he had worked as a transportation worker and a fishing boat crew member and cake worker.  At the time of the offences he worked as an unlicensed plumber and electrician and earned $9,000 a month.  He contributed most of his income to his family. 

13.  D2 is a 58 years old, single, he was born in Macau and completed primary education there.  He has 10 siblings but D2 lives apart from them, in fact D2 is a street sleeper.  He had worked as a metal worker and a machinery mechanic before. However, at the time of the offence he was unemployed.   

Mitigation

14.  Learned solicitor for D1 and D2 Ms Liang urged me to adopt 3 years’ imprisonment as the starting point in sentencing D1 and possibly D2 who had a criminal record worse than that of D1.  She submitted that the offences committed by the two defendants were opportunistic.  She pointed out that both defendants had demonstrated their remorse by making full confession to the police and pleading guilty in court.  She stressed that the building was vacant pending redevelopment at the material times and hence there was no risks that D1 and D2 would hurt or confront anyone inside the buildings.

15.  Ms Liang submitted that D2 was old and did not live on welfare assistance and he just wanted to pick up something to sell for his living.  D1 who was a friend of D2 just wanted to help D2.  Ms Liang submitted that both defendants were not professional burglars and the value of the stolen property was low.  She said that there was no need to impose deterrence sentences on each defendant.  She submitted that the two offences formed one single transaction.  She asked for leniency on behalf of each defendant.

Reasons for sentence

16.  Burglary has always been regarded by the courts to be a very serious offence.  The Court of Appeal has said time and again that unless there are very special circumstances in the case or exceptionally strong mitigating factors which will be rare, a sentence of imprisonment has to be imposed to reflect the gravity of the offence, even if the defendant on his personal circumstance may be otherwise suitable for some form of non-custodial sentence.               

17.  Given the facts of this case and the personal circumstance of each defendant including their respective criminal records, the only appropriate sentencing option in this case in respect of each defendant is imprisonment, even though each one of them had pleaded guilty.

18.  As to the quantum of the sentence, the Court of Appeal has also laid down clear sentencing tariffs that the proper starting point for a domestic premises burglary offence is 3 years imprisonment and 2½ years imprisonment for a non-domestic premises burglary.

19.  In the present case, Building A and Building B were both residential buildings in nature.  However, on the basis of the submissions made by both prosecution and the defence, and from the photographs taken of the offence locations, I have no doubt that at the material times residents of the two buildings had already vacated from all the flats of these buildings which were due to be demolished for the purpose of redevelopment.

20.  Under these circumstances, I shall treat the two buildings to be non-domestic in nature.  In addition, unlike some non-domestic premises like shops or offices which were usually occupied by people, the flats inside these two buildings were vacant and sealed and were not used by people. Therefore, it must be right for Ms Liang to say that it was unlikely for anyone to be hurt or confronted by D1 and D2 when they committed these offences.  For this reason, this court is a liberty to adopt a starting point lower than the usual 2½ years as laid down by the Court of Appeal.  

21.  I note however, that D1 and D2 had prised open some of the flats for the purposes of stealing.  In addition, these offences were committed by two persons in concert instead of a lone burglar, which constituted an aggravating factor.  (see HKSAR v Cheng Wai Kai, CACC338 & 379/2007).

22.  I also note D1 had no previous conviction for the offence of burglary, but D2 had three previous similar convictions. However, D2 was sentenced in 2004 for his last burglary offence.  I will therefore ignore D2’s previous burglary conviction for the purpose of sentencing.  I shall treat neither  D1 nor D2 as a professional burglar.  In other words, the starting point of the prison term will not be adjusted upwards on account of their criminal record. 

23.  Balancing all these factors, I am of the view that the appropriate starting point for each charge in respect of each defendant is 2 years’ imprisonment.

24.  As to the mitigating factors, Ms Liang submitted that the offences committed by the defendants were opportunistic in nature.  I have no hesitation to reject this submission because each defendant had equipped themselves with some tools to assist them in the course of their offences. They joint hands in the theft and they entered one building after the other for the purposes of their criminal adventure.  They had to break into some of the flats as well.  It must however be added that although tools were used in the burglaries, the tools were just small tools to be expected in minor burglaries and hence I do not regard the use of tools constituted an aggravating feature as referred to in Cheng Wai Kai. 

25.  I note all that have been said on behalf of D1 and D2.  It was submitted that D2 had to steal because he had no job and no welfare assistance, and D1 was just helping a friend.  However, financial difficulty only explained why a person resorted to crime and is not a mitigating factor.

26.  In the present case, the only valuable mitigating factor is their guilty plea.  Each defendant is entitled to be given the usual one-third discount.  For these reasons the proper sentence to be imposed on each defendant on each of the charges shall be 16 months imprisonment.

27.  I now have to consider whether the two sentences of each defendant shall run wholly concurrently or wholly consecutively or partial concurrently and partial consecutively. 

28.  Ms Liang asked me to impose a wholly concurrent sentence on the ground that the offences took place on the same occasion.  It is always a matter of semantics to say whether these two offences committed on the same occasion or whether they were two offences committed one after the other, especially when Building A and Building B were in fact independent buildings with different entrances and there was no corridor or passageway linking the two buildings. 

29.  However, when I deal with the appropriate sentence for each charge, I am imposing a sentence on the defendant for committing burglary in respect of one building only.  If I had to impose concurrent sentences on each defendant for these two charges, I would have adopted a starting point higher than 2 years to reflect there were two burglaries involved.  Hence, I shall reject the submission that each defendant should be given wholly concurrent sentences.  Ultimately, the guiding tool is the principle of totality.  In other words, the overall sentence must not be too lengthy but it must at the same time reflect adequately the criminality of all the offences committed by the defendant. 

30.  Bearing this principle in mind, I am of the view that an overall term of 2 years’ imprisonment will reflect adequately the gravity of the offences and the mitigating factors in favour of each defendant.

31.  For these reasons, I impose the following sentences;

In the case of D1

Charge 1, 16 months imprisonment;

Charge 2, 16 months imprisonment, 8 months to run concurrently with Charge 1 and the remaining 8 months to run consecutively, making a total of 24 months imprisonment.

In the case of D2

Charge 1, 16 months imprisonment;

Charge 2, 16 months imprisonment, 8 months to run concurrently with Charge 1 and the remaining 8 months to run consecutively, making a total of 24 months imprisonment.