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DCCC 981/2020
[2021] HKDC 498
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 981 OF 2020
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HKSAR |
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v |
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YUNG KI CHEUNG |
(D2) |
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HE JIFEI |
(D3) |
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| Before: |
His Honour Judge Tam |
| Present: |
Mr Iu PS Thomas, Counsel-on-fiat, for HKSAR |
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Mr Hung Kin Man, Samson, instructed by T C Wong & Co, assigned by the Director of Legal Aid, for the 2nd defendant |
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Mr Cheung Chi Fai, Victor, instructed by Morley Chow Seto, assigned by the Director of Legal Aid, for the 3rd defendant |
| Offences: |
[1] Burglary（入屋犯法罪） - D3 |
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[2] Burglary（入屋犯法罪） - D2 |
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REASONS FOR SENTENCE
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1. D3 pleaded guilty before me to Charge 1 of Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. Particulars are that he, together with D1, on 5 August 2020, in Hong Kong, having entered as trespassers part of a building known as Shop No 258, 2nd Floor, Hsin Kuang Centre, No 120 Lung Cheung Road, Wong Tai Sin, Kowloon, stole therein 112 boxes of toy figures.
2. Further, D2 pleaded guilty before me to Charge 2 of Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. Particulars are that he, together with D1, on 9 August 2020, in Hong Kong, having entered as trespassers part of a building known as “Big Bear”, Ground Floor, Nos 201-203 Castle Peak Road, Cheung Sha Wan, Kowloon, stole therein 74 boxes of toy figures, one cup, one Bluetooth headset and one bag.
3. D1 has failed to turn up. Prosecution applied for a warrant of arrest to issue. After hearing Mr Wong Po Wing of counsel for D1, I issued a warrant of arrest against D1 with no bail on return, and ordered that the question of estreatment be reserved. Thereupon, Mr Wong applied to discharge the legal team of D1. I so ordered.
FACTS ADMITTED BY D2 AND D3[1]
Charge 1
4. The claw-machine shop subject of Charge 1 (“Shop 1”) was closed because of Cap 599F. PW1 the person-in-charge put cordon poles at the entrance to bar entry. All the machines nonetheless were in operation. In the morning of 5 August 2020, PW1 returned to Shop 1 and found locks to 6 out of 17 machines were prized, and 112 boxes of toy figures to the total value of about $34,200 were missing. Police report was made.
5. What happened was that at about 4:50 am that day, D1 drove a car carrying D3 to outside the building at which Shop 1 was located. Later two other persons got on board. Sometime later, D1 and D3 and two others (all in masks) were inside Shop 1. D1 and D3 broke open the claw machines with a tool and stole the toy figures. D3 left Shop 1 with 2 black plastic bags. D3 then returned to Shop 1 empty handed and left again with 4 bags in his hand. At about 5:35 am, D1, D3 and 2 others returned to the car and placed the bags into the trunk. D1 left. D3 drove the car away.
Charge 2
6. The claw machine shop subject of Charge 2 (“Shop 2”) was closed because of Cap 599F. The rolling gate of the shop was lowered. All the machines were nonetheless in operation. In the small hours of 9 August 2020, PW3 the person in charge checked the CCTV of Shop 2 with his mobile phone and saw 2 males prizing open the machines. The case was reported to the police.
7. When police arrived, they found D1 and D2 there. They were arrested. Several bags of stolen toy figures were found in the vicinity and seized by the police.
8. What happened was D1 and D2 entered Shop 2 through the door of the rolling gate at 3:05 am on the same day. They then wandered inside the shop and tampered with the claw machines, and stole boxes of toys. Shortly after 3:47 am, D1 was seen alighting a vehicle parked in the vicinity. He then picked up a blue object from the driver of a nearby vehicle before re-entering Shop 2 with D2 again.
9. The items listed in the charge to the total value of about $23,100 were found missing.
Caution
10. During a subsequent cautioned VRI, D2 stated:-
(a) D1 invited him to steal the toys for a reward of $1,000; he met D1 in Kwun Tong and they travelled to the scene by taxi; he then prized open 2 claw machines with pliers and stole 3 boxes of toy figures;
(b) He identified the 3 boxes of toy figures seized as property he had stolen; and
(c) He picked up the pliers right outside the shop after he got off the taxi.
11. D3 now admits he and D1 have stolen the items listed in Charge 1.
12. D2 now admits he and D1 have stolen the items listed in Charge 2.
CRIMINAL RECORDS
13. D2 has 8 previous convictions none similar.
14. D3 has 4 previous convictions one of which was for theft.
ANTECEDENTS
15. D2 is aged 42 now and at the time of the offence, educated to secondary level, was a decoration worker. He is divorced and resides in Cha Kwo Ling Road.
16. D3 is aged 45 now and at the time of the offence, educated to secondary level, unemployed. He is separated from his wife and resided with his father in Wong Tai Sin.
MITIGATON
D2
17. Mr Samson Hung of counsel assigned by the Director of Legal Aid mitigated on behalf of D2. The following is a summary of the mitigation submissions.
18. D2 is a divorcee with a daughter (15) who is a F3 student living apart with D2’s mother (66). D2 is living with his girlfriend who is not working and they have a son (2½) who is being taken care of in a foster home under the arrangement of SWD. D2 is a construction worker on casual basis earning about $20,000 monthly. He is the main breadwinner and he used to give his mother $10,000 for her maintenance and his daughter’s upkeep. He also gives $3,000 to her girlfriend for maintenance. Due to covid-19 in 2020, D2’s income dropped to $6,000 per month and that is why he committed Charge 2.
19. All stolen property under Charge 2 has been recovered and D2 pleaded guilty.
20. D2 submitted two mitigation letters (with English translation) written respectively by D2 and his girlfriend. The contents are generally that D2 is remorseful and asks for leniency; that he is not a greedy man and worked very hard as a good and responsible father; that he committed the offence under influence from bad peers and loss of jobs.
D3
21. Mr Victor Cheung of counsel assigned by the Director of Legal Aid mitigated on behalf of D3. The following is a summary of the mitigation submissions.
22. D3 had previously worked as a lorry driver earning about $16,000 a month during which time he contributed $4,000 a month to his father as household expenses. In 2019, he became unemployed. He resided with father and young sister who works as a clerk.
23. D3 committed the offence due to financial difficulty. Under influence of other and his greed for a reward of $1,000, he committed Charge 1. D3 has not received the reward.
24. The tariff for burglary of non-domestic premises is 2½ year’ imprisonment: Attorney General v Lui Kam Chi [1993] 1 HKC 215. D3 pleaded guilty in time and asks for a 1/3 discount and asks for leniency.
SENTENCE
25. The two burglaries are clearly pre-planned and not opportunistic in nature. The usual sentence of 2½ years starting point will apply to each charge.
26. There is of course the aggravating factor of acting in concert for which 3 months shall be added to each of the starting points for the two charges. There is insufficient material to suggest that either D2 or D3 was the ringleader in the respective burglaries.
27. Although all the stolen property under Charge 2 was recovered, that is due to the efficiency of the police in arriving at the crime scene speedily. I will not give D2 any credit on this ground.
28. Both defendants pleaded guilty in good time for which a 1/3 discount in sentence will be given to them. There are no other mitigating factors of sufficient weight to justify any further discount.
(Defendants, please stand)
29. For Charge 1, D3 will go to prison for 22 months.
30. For Charge 2, D2 will go to prison for 22 months.
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(Isaac Tam) |
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District Judge |
[1] On my direction, the parts relating to what D1 said under caution ie paras 9 and 10 of the Amended Summary of Facts were not read out to D2 and D3 for their agreement.
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