HKSAR v. CHAN YIU HUNG AND ANOTHER

DCCC 1089/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1089 OF 2011

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Reasons for Sentence

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Charge and facts

1.  D1 and D2 were arrested red-handed in the attempted burglary of a shop which stocked $3 million’s worth of bird nest.  They now plead guilty.     

2.  Surveillance had actually started a few hours before the act.  Acting on intelligence, the police paid close attention to ‘Real Bird Nest Company’ (“the Shop”) in Tsim Sha Tsui East.  At around 0055 h on 11 August 2011, they saw D1 loitering outside the Shop, which was closed.  He raised his hand to reach the top of the roller shutter and then left in a hurry. 

3.  At around 0600 h, accompanied by D2, D1 returned to the Shop with an opened umbrella though it was not raining.  He alerted D2 to the CCTV camera and apparently tried to shield D2 from it with the umbrella as D2 toiled at the roller shutter switch box.  D1 acted as the look-out in the meantime.  The police came up to arrest and caution them. 

4.  D1 had nothing to say.  A car key to his private car was found on him.  It was parked one block away.  On board was a profusion of burglary tools.  There were burglary tools on board, ie 2 pairs of hydraulic cutters, 1 screwdriver, 1 pair of cutters, 1 spanner, 2 pairs of pliers, 1 piece of saw blade and 5 pairs of gloves. 

5.  D2 admitted burglary.  On him were found 2 sets of master keys and 2 sets of tubular pin tumbler lock (“tumbler lock”) master keys, the latter of which were professional contraptions.  The lock expert gives evidence to explain the use of the master key to the tumbler lock.  The roller shutter did not have a tumbler lock.  The 2 sets of master keys were the type of keys to open the roller shutter.  There is, however, no evidence as to whether inside the Shop, there were tumbler locks installed for the safes or storage rooms; to be fair to the defence I shall not speculate further or impose culpability along this line.

Defendants’ personal background and mitigation

6.  D1 is 31 years of age.  He studied up to F. 2 in Hong Kong.  He last worked as a garage apprentice.  He married nearly 4 months ago. 

7.  He has 3 records for burglary from 1994 to 2009, 1 record for robbery in 1999, 2 records for deception in 1999 and other records for serious offences dissimilar to burglary.  Since his formative years, he has spent more time behind bars than home.  Be that as it may, I do not regard him a recidivist for burglary.      

8.  D2 is now 49 years of age.  He received primary education in China.  His wife and son are in Shenzhen.    

9.  He has 25 records for burglary from 1983 to 2005, 3 records for theft from 1983 to 1993, 3 records for handling stolen goods from 1989 to 2010, and other records for dishonesty offences.  He has to be regarded a recidivist.       

10.  D2’s case is that D1 was the planner and he merely assisted D1 to carry out the burglary.  D1 denies D2’s case.  I have held a Newton hearing to ascertain their conflicting cases.  D2 elects to call no evidence, D1 likewise.  D2’s case thus fails.  He has to be sentenced on a par with D1.

Factors of sentencing

Sentencing guidelines

11.  In R v Wong Man [1993] 1 HKC 80, Macdougall JA in the Court of Appeal said that the proper starting point for non-domestic premises would be 2 ½ years’ imprisonment for a first offender of full age.  In HKSAR v Sim Ka-wing CACC 450/2000, the Court of Appeal explained that the said starting point should be adjusted where there were aggravating factors. 

Meticulous planning and stealing goods of considerable value

12.  In Sim Ka Wing (above), the applicant was a Delifrance restaurant outlet manager who had been serving the notice period before resignation took effect.  He decoyed himself by a cap, a wig, glasses and cosmetics to avoid recognition by the CCTV camera of same outlet on which he pulled the burglary. He had some maps of Hong Kong in his rucksack to pose as a tourist in case of interception.  He had a voice changing device for calling the getaway taxi.  He muffled the sound of his electric drill by a pillow he brought along.  He wore plastic gloves so as not to leave fingerprints.  Keith JA in the Court of Appeal said:

9. The conventional starting-point of 2 1/2 years' imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point. The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find. Likewise, the conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value. In our opinion, the degree of planning and premeditation in this case was more (though not much more) than normal, and justified a modest increase in the starting-point. (my emphasis)

Inchoate offence

13.  The burglary could have materialized but only ended because of police intervention. No discount of sentence can be had for its incompletion.   

Sentencing these defendants

14.  D1 went to inspect the ambience of the Shop a few hours before action.  It was a most valuable target.  Before the burglary he had caused to park his car loaded with a full range of burglary tools one block away, which served the dual purpose of convenience and risk of interception.  Clearly the tools were to make up for whatever the master keys had failed to accomplish.  He even opened an umbrella to shield D2 at work from the CCTV camera.  These fall into Keith JA’s description of “meticulous care” and “goods of considerable value”.  A modest increase in the starting point is called for.    I pitch it at 6 months. Another 3 months is added to reflect more gravity based on joint enterprise. 

15.  The overall starting point is thus 3 years and 3 months (ie 39 months). I give one-third discount for D1’s plea of guilty.  There being no other mitigating factors, his sentence is 2 years and 2 months (ie 26 months).                   

16.  D2 has the additional aggravating factor of recidivism, for burglary and dishonesty offences, which has never quite relented up to the present stage of his life.  I take 3 years and 6 months (ie 42 months) as the starting point.  As he has lost at the Newton hearing, I give a slightly less than one-third discount for his plea of guilty.  There being no other mitigating factors, his sentence is 2 years and 5 months (ie 29 months).