HKSAR v. CHENG YIU KUEN

DCCC 154/2024

[2024] HKDC 2102

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 154 OF 2024

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REASONS FOR SENTENCE

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The defendant pleaded guilty to 2 charges of "Burglary". He and an unknown male burgled the same unoccupied residential flat twice within 2 months.

Summary of Facts

Background

2.  The Lee's brothers (PW1 and PW2)  used to reside at 2^nd Floor, No.33 Sai Yee Street, Mongkok ("the Flat").  It became unoccupied in 2012.  PW1 would occasionally return to the Flat to take a look.

3.  PW2 has stored 5 cameras ("the Cameras"; valued at $40,000)  and a ceramic figure ("the Figure"; valued at $1,000)  at the Flat.

4.  PW1 last visited the Flat on 12 June 2023 and everything was in order.

Charge 1

5.  About 4:00 p.m. on 19 June 2023, a neighbour informed PW1 that the Flat's door was left ajar.  PW1 and PW2 both went to the Flat.  They discovered that the metal grille and the door of the Flat having been prized open (the repair costs were $5,500); the Cameras were missing; and there were signs of ransacking.  The Police was alerted.

6.  After this incident, PW1 and PW2 used an iron chain to secure the metal grille and the door.  A CCTV camera was installed in the Flat.

7.  On 22 July 2023, the brothers went to tidy up the Flat.  Everything was in order and the CCTV camera was functioning properly.

Charge 2

8.  About 9:00 a.m. on 5 August 2023, the CCTV camera system alerted PW1 that someone was in the Flat.  PW1 informed PW2 of the same.  Having reviewed the CCTV footage, PW2 discovered that 2 unknown males (one of them was later identified as the defendant)  had entered the Flat by opening the metal grille and the door at 6:02 a.m. that day and left at 6:16 in the same morning.

9.  PW2 went to the Flat immediately and discovered that the iron chain having been cut; the metal grille and the door having been prized open (the repair costs were $3,000); the Figure was missing; and there were signs of ransacking.  The Police was alerted.

Arrest and admissions

10.  On 5 August 2023, PC 10105 (PW3)  reviewed the CCTV footage obtained from various locations in the vicinity.  He identified the appearances of the 2 males who burgled the Flat.

11.  About 5:05 p.m. on 16 August 2023, whilst on patrol, PW3 intercepted the defendant in Mongkok and cautioned him for the burglary in relation to Charge 2.  The defendant admitted that he had committed the offence.  PW3 then arrested him for "Burglary" and cautioned him again.  The defendant said "I had disposed of those things as they were useless."

12.  In his video recorded interviews, the defendant claimed that on a day between 12 and 19 June 2023, he and an unknown male (Male A; whom he had met at Macpherson Playground)  broke into the Flat to steal.  Male A took away a few cameras. Later, the defendant was given $200 after the cameras were sold (Charge 1).  On 5 August 2023, the defendant and Male A broke into the Flat again to steal. The defendant took the Figure with him.  He later threw it away somewhere in Sham Shui Po (Charge 2).

Mitigation & Sentence

13. The defendant is 44 and has 10 conviction records, which included 2 "Theft" offences (dated January 2020 and December 2021 respectively). Defence counsel Mr. Lee informed me that the defendant is single and resides alone. He left school after Form 3 and has taken up different jobs such as cleaning, construction, food & beverage and logistics. In mitigation, Mr. Lee submitted that the defendant committed the present offences out of greed and that he was not the mastermind.

14. Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious)  is no mitigating factor for committing a crime. The normal starting point for domestic burglary is 3 years' imprisonment. The defendant and Male A burgled the same residential flat twice within 2 months are aggravating factors[1].

15. For Charges 1 and 2, I adopt a starting point of 39 months' imprisonment each. With the timely guilty plea, the sentence for each charge becomes 26 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 26 months' imprisonment for each charge.

16. Bearing in mind the totality principle, I consider a global starting point of 45 months' imprisonment appropriate for both charges. With the timely guilty pleas, the overall sentence becomes 30 months. Hence, I order 4 months in Charge 2 to run consecutive to Charge 1, arriving at a total prison term of 30 months.