HKSAR v. LEUNG PUI AND OTHERS

DCCC128/2012 & 688/2001(Heard Together)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS. 128 OF 2012 & 688 OF 2001

(Heard Together)

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Reasons for Sentence

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DCCC128/2012

1.  D1 to D4 appeared before me in this case and they all pleaded guilty to a single charge of attempted burglary, contrary to sections 11(1)(a) and (4) of the Theft Ordinance, Cap.210 and section 159G of the Crimes Ordinance, Cap.200.

2.  In this case, the particulars of the offence aver that on 12 December 2011, the four defendants attempted to enter as trespassers part of a building known as “Wah Shing Gold Company”, which is situated at Ground Floor, Chun Hing Building, No.96C Pei Ho Street, Sham Shui Po, Kowloon, with intent to steal therein.

Facts

3.  I shall largely adopt the summary of facts prepared by the prosecution which has been admitted by all four defendants.

4.  According to the facts, the burglary was targeted at Wah Shing Gold Company (“the shop”) situated at the ground floor and mezzanine floor of Chun Hing Building (“the building”), which is an eight-storey commercial and residential building situated at No.96C, Pei Ho Street, Sham Shui Po, Kowloon.

5.  At around 8:30 pm on 11 December 2011, one Mr Wu, the proprietor of the shop, properly closed the shop before he left.

6.  At around 10:30 pm, an anti-burglary operation was conducted at Pak Hoi Street.  The police officers found D1 to 4 acting furtively in the vicinity of the building and thus kept them under close observation.

7.  At around 12:24 am on 12 December 2011, D1, D2 and D4 were first seen walking into the building via the main entrance. Meanwhile, D3 was seen appearing at the rear lane of the building, where he put on gloves and pulled open the metal door of the building.

8.  Later on, D3 took out a bag.  D3 also walked out from the rear door of the building.  At the same time, D3 gave D4 the bag and they both walked into the building together.

9.  At around 12:36 am, D1 was seen walking out from the main entrance of the building towards Sham Shui Po MTR station.  He then wandered around outside the MTR station at exit A2.

10.  At around 1:21 am, D2 - D4 were seen walking out from the main entrance of the building.

11.  However, at around 2:00 am, they returned to the building and entered the building again.

12.  At around 2:30 am, the police operation turned overt.  D1 was arrested outside the MTR station, whereas D2 - D4 were arrested inside the building.

13.  At the time of arrest, a pair of labour gloves were found on D2’s person, whereas another pair of gloves, a torch and three screwdrivers were also found on D4’s person.

14.  Under caution, D1 remained silent whereas D2 - D4 admitted the offence at the scene.

15.  Upon checking at the scene, the police found two holes on the outer wall of the shop from the rear staircase adjoining to the mezzanine floor of the shop.  One of the holes was broken through and was about 2 x 2 feet in size.

16.  In addition, a number of breaking equipments, namely, a hydraulic jack, three pieces of wood blocks and three screwdrivers, two saws and an electric drill, two pairs of pliers and three pairs of gloves were found at this rear staircase.

17.  According to the result of the examination by a senior forensic scientist of the police, the two holes on the outer wall adjoining the shop were caused by the hydraulic jack and the wooden block seized at the rear staircase.

18.  The proprietor of the shop confirmed that nothing was missing from the shop.

Subsequent Video Recorded Interviews (VIRs)

19.  In the subsequent VIRs, D1 denied the offence. He said that he just had meals with his friends and he missed the last train so he waited for the first MTR to Shenzhen but he was suddenly arrested by the police and he did not know the other defendants.

20.  D2 made full admission to the offence.  He said he received a call from D3, asking him to join a burglary on 11 December 2011. He agreed and on that day he met D3 and other two defendants whom he did not know. He was asked by D3 to assist him to drill a hole and they eventually drilled a hole on the wall.

21.  D3 also made full admission to the offence.  He said it was his idea to burgle the shop as he had lost money in recent gamblings. He then bought the breaking equipment and picked up some wooden blocks and hid them at the rear door of the building beforehand.  He then called the three other defendants to commit the burglary offence.  He met them up in a fast food restaurant in the vicinity and explained the plans that D2 and 4 would assist him in breaking into the shop whilst D1 would act as a lookout on the street.

22.  D4 also made full admission that he agreed to burgle the shop as suggested by D3 and he took part in drilling holes on the walls.

Criminal Records and Mitigations

23.  D1 is 54 years old and he has a total of 10 criminal records, for which two were burglary-related offences.  He also committed an attempted robbery in 2005 and had a handling of stolen goods record in 2009.

24.  He was last sentenced by the District Court to

25.  Mr Yiu, appearing for D1, told me that his client committed the present offence as he had insufficient work after release from the prison and he was asked by D3 to join the burglary in return for a reward of $10,000 to $20,000, depending on the proceeds of the crime.  D1 was not the mastermind and he acted as a lookout only.  The premises suffered no loss and there was no damage to the premises, apart from the outer walls.

26.  D2 is 52 years old.  He had a total of 15 conviction records, of which 4 are burglary related.  From 2000 to 2010 he was sentenced to 2 years and 22 months for burglaries and his last conviction for attempted burglary was in 2010, for which he was sentenced to 26 months. Similarly, he was also released in April 2011.

27.  In mitigation, Mr Yiu also emphasised that he was not the mastermind but was urged by D3 to join the burglary.  He was a married man with three children.  They are all in court today to support the defendant.  D3 also wrote a letter to the court expressing his remorse and urged me to deal with him as leniently as possible.

28.  Despite the fact that both D1 and D2 had similar records, Mr Yiu still urged me to adopt the usual starting point of 2½ years.

29.  D3 is 54 years old.  He had a total of 26 conviction records.  There are 15 records of burglaries and four attempted burglaries record.  There are two going equipped for stealing records as well as two robbery records.  His last seven criminal records are all either burglary or attempted burglary.  He was sentenced to 26 months in 2010, together with D2 in the same case by the District Court.  He too was, therefore, released from prison in April 2011.

30.  There is not much Mr Chiu can say on his behalf. According to the mitigation, D3 turned to commit the offence as he could not secure a steady employment after release from the prison.  His application for social security payment was also rejected because he stayed in the Mainland most of the time.  Although he had a divorce with his second wife, he still needs to make a contribution to his young daughter, who is now only 6.

31.  Mr Chiu urged the court not to sentence D3 on his previous records.

32.  D4 is 55.  He was 45, therefore, when he committed the first burglary in 2001.  He only had a going equipped for stealing record back in 1986 and he was only given a suspended sentence.

33.  Mr Chiu explained that D4 finally resorted to committing burglary as his elder sister and her family had a tragic traffic accident and his elder sister was in a coma since the accident.  In order to find the medical expenses, D4 sold his property but they were still not enough.  He was lured by some of his friends to commit the first burglary.

34.  As his mother was old at the time and the elder sister and her family was in need of his support and care, he decided to abscond and sneak back to the Mainland through illegal channel.  His elder sister unfortunately passed away in 2002 and he worked in the Mainland doing odd jobs to repay the debts incurred through the medical expenses.

35.  After 10 years’ hiding, D4 had no money and, responding also to the call by D3, he decided to come back to Hong Kong and committed the second burglary on the very next day he returned.

36.  D4 submitted a letter of mitigation and also the death certificate of his elder sister and the copy civil judgments proving the accidents he mentioned in the mitigation.

Sentencing Considerations

DCCC128/2012

37.  The normal tariff for a non-domestic burglary was

38.  However, according to the recent Court of Appeal decisions, the starting point could be adjusted upward for aggravating circumstances such as:

(a) the offence was carefully planned and skilfully executed, involving the use of heavy instruments or equipment;

(b) the offence was committed by two or more persons;

(c) the offence targeted substantial premises and involved substantial properties;

(d) the offender was a professional burglar and not just an opportunist;

(e) the offender has previous convictions, particularly similar in nature; and

(f) the offender committed multiple offences.

Further, there was a need for the deterrent sentence for professional or serial burglars. (see HKSAR v Cheng Wai Kai [2008] HKEC 1009 and HKSAR v Fan Kit Hung [2009] 1 HKC 314)

39.  In this case, the defendants were caught red-handed. There were also present several aggravating features as described.  They all acted as professional burglars, with D3 as the mastermind, the prime mover, and the other three defendants as accomplices with equal criminality.

40.  The burglary was clearly a planned enterprise involving the use of heavy equipment such as hydraulic jack and electric drill.

41.  The shop targeted was a gold company with valuable and substantial property involved.

42.  Further, all the defendants had previous convictions, and apart from D4, even similar burglary conviction as described above.

43.  On the other hand, apart from the two holes drilled on the outer wall of the shop, I accepted that no substantial damage was caused to the shop and, most importantly, no property was stolen from the shop.

44.  As to the criminality of each defendant, it is only natural that D3 should receive a higher sentence than the other accomplices for his role in the offence.  By comparison, he also had a large number of similar burglary records.

45.  Given also the other aggravating features present, I consider that a starting point of 39 months is appropriate for D3 while 36 months for D1, D2 and D4.

46.  There being no other effective mitigation, I shall reduce the sentence by one-third to reflect the customary discount on their plea of guilty.

47.  The court can never accept economic reasons for committing crimes and family circumstances is not to be a consideration when dealing with sentences in a serious crime such as the present.

Order

48.  D1 is sentenced to 24 months’ imprisonment;

D2 is sentenced to 24 months’ imprisonment;

D3 is sentenced to 26 months’ imprisonment; and

D4 is sentence to 24 months’ imprisonment.

DCCC 688/2001

49.  In this case, D4 also pleaded guilty before me to another burglary charge (Charge 1), which he committed in Yuen Long, New Territories with two other defendants back in July 2001.  He was labelled as D2 in that case but I shall continue to describe him as D4 for easy reference.

50.  D4 was caught red-handed together with the other two defendants in a commercial premises.  The iron gate of the premises was prised open, and three persons, including D4, was found by the police inside the manager office of the premises.

51.  D4 later admitted to the police that he was using a crowbar and a screwdriver to prise open the safe.  Nothing was found missing from the premises.

52.  D4 was admitted to the bail by the court in the Magistracy but when the case was transferred to the District Court, he subsequently absconded and jumped bail on 31 August 2001.

53.  He was, therefore, charged with another offence of “Failing to surrender to custody without reasonable cause.” (Charge 2), and he also pleaded guilty to this charge.

54.  In sentencing, I consider that the burglary offence in this case is less serious than that in DCCC128/2012, both in terms of the level of planning and the nature of equipment involved as well as the number of defendants involved.

55.  I therefore only adopt 33 months as a starting point.

56.  After giving the proper one-third discount, the sentence on Charge 1 is therefore 22 months’ imprisonment.

57.  For Charge 2, I shall adopt 6 months as a starting point and pass a sentence of 4 months’ imprisonment after the usual discount but that is not the end of the matter.

Total sentence

58.  I have before me the sentence of two burglary cases. In principle, if the two burglary offences of these two cases were committed in different premises against different victims on different days, consecutive sentence should be imposed. 

59.  However, I do bear in mind the principle of totality, and for this reason, in the end, I order that only 8 months of the 22 months’ term of this case be run consecutively to his 24 months’ term in DCCC128/2012, making a total of 32 months’ imprisonment on these two burglaries.

60.  As Charge 2 is a separate and distinct offence altogether, I consider that only a totally consecutive sentence is appropriate, so the total sentence of D4 for all three charges in these two cases will come to 36 months’ imprisonment.