HKSAR v. TSE CHUEN YEE

DCCC 681/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 681 OF 2016

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one offence of attempted burglary on 20 June 2016 at a premises in Canton Road in Mongkok. He has agreed the Summary of Facts which shows the nature of this attempt.

2.  They confirm that the attempted burglary was at a premises in Canton Road on the 5th floor and it was a premises outside which a CCTV camera was installed.  The occupants of the premises who were PW1 and PW2 left their premises with their daughters locking the door and the metal gate and then went downstairs to the ground floor.  As they walked down, one of them saw the defendant walking towards the upper floors from the first floor of the building and she informed PW2 about this who then checked the CCTV footage which he could through his mobile phone.  On viewing the CCTV footage, the defendant was seen to touch various parts of the metal gate of the premises and try to prise the keyhole of the metal gate of the premises with an L-shaped object, which turned out to be an Allen key, only he was captured tampering with the metal gate for over one minute.

3.  The case was reported to the Police.  The defendant was subsequently arrested on the rooftop of the building.  Under caution, immediately the defendant stated he did not steal anything, he was only looking for things he could pick up and he was found to be still in possession of the Allen key.

4.  The defendant made a video-recorded interview later.  He says that he was working as a renovation worker on a casual basis. On 20 June he was scavenging because he had not got any renovation work that day.  He picked up the Allen key in Canton Road Market, had gone into the building, touched the metal gate to see if it could be opened; he said it was due to momentary greed to see if anything could be scavenged; then went to the rooftop.  He said he was looking for things he could pick up and did not steal anything.  He admits he entered the premises as a trespasser with the intention to steal.  I am informed that the premises on the 5th Floor were the only occupied premises in that building.

5.  As far as the defendant's antecedents are concerned, he does have criminal convictions on two previous occasions. Firstly, in July of 2010, attempted theft and sentenced to 2 months' imprisonment, a total of 3 months in fact and then on 29 December 2010 later that year he was sentenced to 8 months' imprisonment for theft which is described as "pickpocket" when he was apparently taking a wallet from a person who was incapacitated through drink.  The defendant was discharged from custody on 5 May 2011. 

6.  He is aged 41.  He was working at the time as described in his cautioned statement as a renovation worker but was unemployed on the date of his arrest.

7.  I am told in mitigation that since his release from prison in 2011 he went to China with his girlfriend and all the money that he had saved up to that point was lost.  He had returned to Hong Kong and was looking for renovation jobs.  He attributes the commission of this offence to economic stress and his own greed.

8.  As far as sentence is concerned, there are clear guideline sentences for burglary of domestic premises.  This is a domestic premises burglary and it is trite law that the sentence for an attempt to commit the full offence should normally be the same. The guideline sentence for a domestic premises burglary is a sentence of 3 years' imprisonment for conviction after trial for a person of previous clear record.

9.  The defendant is not of clear record, he has offences of dishonesty in the past, however, I do not consider that they should be an aggravating factor in the sentence in this case.  In fact I see no reason to depart from the normal guideline sentence in this case which I will adopt as the starting point for sentence.  That is 3 years' imprisonment.

10.  After deduction for the defendant's plea of guilty there will be a sentence of 2 years' imprisonment for this offence.

11.  I will also make an order in terms for the prosecution's application for disposal of exhibits.