HKSAR v. YAU CHI WAI

DCCC 414/2018

[2018] HKDC 1186

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 414 OF 2018

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REASONS FOR SENTENCE

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1.  Defendant Yau Chi Wai pleaded guilty before me to 11 charges of theft, all contrary to section 9 of the Theft Ordinance, Cap 210; and one charge (Charge 7) of Burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210.

2.  Particulars of Charge 1 are that he, on 19 December 2017, at Rooftop, Kwok Cheung Building, No 635 Shanghai Street, Mong Kok, Kowloon, in Hong Kong, stole one water meter with copper pipe, property belonging to another.

3.  Particulars of Charge 2 are that he, between 26 and 27 December 2017, both dates inclusive, at same place as in Charge 1, stole 3 water meters, property belong to another.

4.  Particulars of Charge 3 are that he, on 28 December 2017, at the rear staircase, Ground Floor, Po Lun Building, Nos 175-177 Portland Street, Mong Kok, Kowloon, in Hong Kong, stole 3 water meters and 3 copper pipes, property belonging to another.

5.  Particulars of Charge 4 are that he, between 28 and 29 December 2017, both dates inclusive, at the staircase between 2^nd Floor and 3^rd Floor of Po Lun Building (particulars the same as in Charge 3), stole one copper pipe, property belonging to another.

6.  Particulars of Charge 5 are that he, between 1 and 2 January 2018, both dates inclusive, at water pump room, Ground Floor, Chun Yee Building, Nos 731-733 Nathan Road, Mong Kok, Kowloon, in Hong Kong, stole 3 water meters and 3 copper pipes, property belonging to another.

7.  Particulars of Charge 6 are that he, on 4 January 2018, at Roof Top, Wah May Building, No 211 Portland Street, Mong Kok, Kowloon, in Hong Kong, stole some water meters, property belonging to another.

8.  Particulars of Charge 7 – Burglary – are that he, on 12 January 2018, in Hong Kong, entered as a trespasser part of a building known as “The Hong Kong Allergy Association”, Ground Floor, No 394 Shanghai Street, Yau Ma Tei, Kowloon, with intent to steal therein.

9.  Particulars of Charge 8 are that he, on 12 January 2018, at the patio, Ground Floor, No 394 Shanghai Street, Yau Ma Tei, Kowloon, in Hong Kong, stole one copper pipe, property belonging to another.

10.  Particulars of Charge 9 are that he, between 23 and 24 January 2018, both dates inclusive, at the rear lane of No 428 Shanghai Street, Yau Ma Tei, Kowloon, in Hong Kong, stole one copper pipe, property belonging to another.

11.  Particulars of Charge 10 are that he, on 24 January 2018, at the staircase between 6^th Floor and 7^th Floor, Alhambra Building, No 387 Nathan Road, Yau Ma Tei, Kowloon, in Hong Kong, stole one copper pipe, property belonging to another.

12.  Particulars of Charge 11 are that he, on 24 January 2018, at Rooftop, Po Lun Building (particulars same as in Charge 3), stole one copper pipe, property belonging to another.

13.  Particulars of Charge 12 are that he, on 25 January 2018, at the rear lane of Diamond Mansion, Nos 627-633 Shanghai Street, Mong Kok, Kowloon, in Hong Kong, stole 3 water meters and 3 copper pipes, property belonging to another.

Admitted facts

14.  The facts admitted by Mr Yau may be summarized as follows.

Charge 1

15.  On 19 December 2017, the landlord PW1 of a residential unit in Kwok Cheung Building, Mong Kok, was informed that there was no water supply to a room of his unit and that a water meter was missing from the rooftop of the building.  Next day, PW1 went to the rooftop to check and found one water meter with copper pipe (worth a total of about $1,500) missing.

16.  PW1 reported to the police.

17.  On 28 January 2018, in a cautioned VRI, the defendant Mr Yau admitted that at the material time, he had gone to the rooftop to dismantle the copper pipe and water meter with his bare hands, and sold the items for $60-100.

Charge 2

18.  Between 26 and 28 December 2017, three different residents of Kwok Cheung Building discovered there was no water supply to them.  One of them discovered that the water meter for his unit was missing from the rooftop of the building and also that some water pipes there were leaking; so he made a police report.

19.  Police made investigation and found that 3 water meters were missing from the rooftop.

20.  On 28 January 2018, in a cautioned VRI, Mr Yau admitted that at the material time of the charge, he went to the rooftop to steal copper pipes and water meters; that he dismantled the copper pipes and water meters with his bare hands and sold them in Sham Shui Po for tens of dollars to a hundred dollars.

Charge 3

21.  Between 28 and 29 December 2017, three different residents of Po Lun Building, Mong Kok, found there was no water supply to them.  Two of them went to the rear staircase at G/F of the building to check and found that the water meter for their respective units were missing.  They separately made police reports.

22.  Police made investigation and found 3 water meters and 3 copper wires were missing from the rear staircase.

23.  On 28 January 2018, in a cautioned VRI, Mr Yau admitted that at the material time, he went to the rear staircase to steal copper wires; that he dismantled them with his bare hands and sold them in Sham Shui Po for tens of dollars to a hundred dollars.

Charge 4

24.  Sometime between 28 and 29 December 2017, the water supply to Ms Leung Hop Yuen’s residential unit at Po Lun Building, Mong Kok, stopped.  She went to check at the staircase between 2/F and 3/F and found that some copper water pipes were bent and there was water leakage.  Moreover, one copper pipe was found missing and the repair cost came to $1,000.

25.  On 28 January 2018, in a cautioned VRI, Mr Yau admitted that at the material time, he went to the staircase to steal copper pipe and water meter; that he dismantled the copper pipe with his bare hands, and sold the same in Sham Shui Po.

Charge 5

26.  Sometime between 1 and 2 January 2018, three water pipes in the water pump room on G/F of Chun Yee Building of Mong Kok became missing with the repair cost amounting to about $28,500.

27.  On 28 January 2018, in a cautioned VRI, Mr Yau admitted that at the material time, he went to the water pump room to steal copper pipes and water meters; that he dismantled the copper pipes and water meters with his bare hands, and sold the water pipes in Sham Shui Po.

Charge 6

28.  On 4 January 2018, the water supply to a residential unit in Wah May Building of Mong Kok stopped.  A resident of the unit went to the Rooftop to check and found some water meters including the one for his unit missing.  He reported the matter to the police.  The repairing cost for the water meter for his unit came to about $1,000.

29.  On 28 January 2018, in a cautioned VRI, Mr Yau admitted that at the material time, he went to the rooftop to steal copper pipes and water meters; that he dismantled 4 water meters with his bare hands, and sold the same in Sham Shui Po.

Charge 7 - Burglary

30.  At about 6 pm on 12 January 2018, the staff of “The Hong Kong Allergy Association” at G/F, No 394 Shanghai Street, Yau Ma Tei, secured the premises before leaving for the weekend.  On return after the weekend, the staff found that the rear door had been left ajar, and the kitchen cabinets had sign of ransacking.  A police report was made despite the fact that nothing was found missing.

31.  CCTV revealed that at about 7:31 pm on 12 January 2018, someone resembling Mr Yau climbed into the patio of the G/F and entered the subject premises after opening the padlock of the rear door with a tool; that person was then seen to search a cabinet near the rear door before going into other parts of the premises not within coverage.  A few minutes later, the person was seen to leave via the same route.

Charge 8

32.  At about 9 am on 15 January 2018, the staff of a non-profit organization known as “Richmond Fellowship of Hong Kong” located at 4/F of No 394 Shanghai Street, Yau Ma Tei, returned to the premises after the weekend only to find that there was no water supply to the premises.  She then went to the patio of the G/F and found one copper pipe missing which required a repairing cost of $13,000.

33.  CCTV footage revealed that the same male as in Charge 7 dismantled and took away water pipes from the patio.

34.  On 28 January 2018, in a cautioned VRI, Mr Yau stated that at the material time, he went to the patio to steal water pipes; that he dismantled the copper pipes with his bare hands, and sold the same in Sham Shui Po for several tens of dollars.

Charge 9

35.  Between 23 and 24 January 2018, the water supply to a residential unit at No 428 Shanghai Street, Yau Ma Tei, stopped.  A resident of the unit went to the rear of No 428 and found that one copper pipe for her unit was missing.  A report was made to the police.

36.  On 28 January 2018, in a cautioned VRI, Mr Yau stated that at the material time, he went to the rear lane to steal copper pipes; that he dismantled the copper pipes with his bare hands, and sold the same (3 metres long) in Sham Shui Po for $60.

Charge 10

37.  On 24 January 2018, it was discovered that one copper pipe at the staircase between 6^th and 7^th Floors of the Alhambra Building, Yau Ma Tei, was missing.  It was confirmed that the repair cost was about $1,000.

38.  CCTV footage revealed that at about 4:22 am on 24 January 2018, someone resembling Mr Yau went up the staircase between 1^st and 2^nd Floors of the building with a two-wheeled trolley and came down again with the same trolley about an hour later.

39.  On 28 January 2018, in a cautioned VRI, Mr Yau stated that at the material time, he went to the staircase between 6^th and 7^th Floors to steal copper pipes; that he dismantled the copper pipes with his bare hands, and sold the same for $60.

Charge 11

40.  It was discovered that one water pipe (valued at about $1,000) originally located at the Rooftop of Po Lun Building of Mong Kok became missing on 24 January 2018.  Case was reported to the police.

41.  On 28 January 2018, in a cautioned VRI, Mr Yau stated that:-

(a) At the material time, he went to the rooftop to steal copper pipes and water meters;

(b) He did not have a specific target;

(c) One of the reasons he went there was the low security of the building;

(d) He dismantled the copper pipes and water meters with his bare hands, or with tools found nearby; and

(e) He sold the copper pipes and water meters for tens of dollars to a hundred dollars.

Charge 12

42.  On 25 January 2018, some residents of Diamond Mansion of Shanghai Street, Mong Kok, complained that there was no water supply to the respective units.  Later the same day, it was discovered that at the rear lane of the building, 3 water meters and 3 copper water pipes were missing.  The case was reported to the police.  The repair cost was about $25,000.

43.  CCTV footage revealed that at about 6:15 pm on 25 January, someone resembling Mr Yau went to the rear lane and dismantled some water meters and water pipes from the building; that he put the same into a bag which he then took away.

44.  On 28 January 2018, in a cautioned VRI, Mr Yau stated that at the material time, he dismantled the copper pipes and water meters with his bare hands and sold the same for tens of dollars to a hundred dollars.

Arrest and cautioned interviews

45.  On 26 January 2018, police intercepted Mr Yau for enquiry because he resembled the culprit whose image was captured by the CCTV footage under Charge 12.

46.  Under caution, Mr Yau stated, inter alia, that he had stolen 3 water meters at a rear lane of a building at Shanghai Street because he had no money to buy food; he sold the stolen goods in Sham Shui Po for $200 with which he bought some food.

47.  In a cautioned VRI conducted on 27 January 2018, Mr Yau stated, inter alia, that he was the culprit in Charges 1-6 and 11; in particular, he stole the water meters and copper water pipes and sold the same in order to buy food.

48.  Mr Yau provided more details of the offences in his cautioned VRIs conducted on 28 January 2018.

49.  The total repairing cost arising from the theft of water meters and copper water pipes on the 11 occasions amounted to more than $72,000.

Criminal record

50.  The agreed criminal record shows Mr Yau has 35 previous convictions accumulated between 1993 and 2017.  A total of 33 of those convictions related to dishonesty-related offences including 14 thefts and 10 burglaries.  He was last sentenced in January 2017 to 20 months’ imprisonment.

Antecedents

51.  The agreed antecedents statement shows Mr Yau to be aged 41 now and at the time of the offences; that he was educated to F3 level; that he was unemployed; that he was last discharged on 7 August 2017; and that he lived in Yau Ma Tei.

Mitigation

52.  Mr Simon Si of solicitor mitigated on behalf of Mr Yau.

53.  The following is a summary of the mitigation submissions.

54.  Mr Yau had worked as decoration worker and waiter since leaving school with no other vocational skills.  After last release in August 2017, he worked in a restaurant which closed down in November 2017 owing Mr Yau 2 months’ salary.

55.  Mr Yau started to cohabit with his girlfriend since 2015 on and off because of his incarceration.  Copy ID card and medical certificate dated 11 April 2017 both of the girlfriend were handed up to show that she was suffering from prolapsed intervertebral disc.  This meant that she could not work and was dependent on Mr Yau.  The girlfriend is in court to provide support to Mr Yau.

56.  Before Mr Yau lost his job, his income per month was $12,000 but $5,000 went to the rent for the flat and the couple had to live on $7,000.  Because he was not paid for the last 2 months of employment, he committed these offences in order to buy food and to look after the girlfriend.

57.  The only real mitigation is the pleas of guilty.  Mr Si asks for full credit of 1/3 reduction in sentence.  Mr Si reminded the court of the conventional sentence of 2 ½ years after trial for burglary of non-domestic premises.  Mr Si concedes that Mr Yau’s acts caused a lot of inconvenience to the residents for only a small sum of money.

58.  Mr Si submits that Mr Yau is now very remorseful and plans to learn some vocational skills and turn a new leaf in his life with a proper job.

59.  Mr Si acknowledges the bad criminal record of Mr Yau will mean a heavier sentence but asks for a shorter increment only.

60.  Lastly, Mr Si asks for leniency on behalf of Mr Yau.

Sentence

61.  I have considered the mitigation submissions made by Mr Simon Si.

62.  The maximum penalty for the offence of theft is 10 years’ imprisonment. There is no tariff sentence applicable to the offence.

63.  The conventional sentence for burglary of non-domestic premises without aggravating or mitigating features is 2 ½ years’ imprisonment (see Attorney General v Lui Kam Chi [1993] 1 HKC 215, and HKSAR v Sim Ka Wing, CACC 450/2000).

64.  Here, I have to sentence Mr Yau for 11 charges of theft and one charge of burglary.  They were committed in the two months of December 2017 and January 2018.

65.  I bear fully in mind the principle of totality when sentencing Mr Yau.

66.  I note the appalling dishonesty-related record that Mr Yau has managed to accumulate for himself and the fact that the present offences were committed shortly after his last release from prison.  On the principle enunciated in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, I will enhance the global starting point by 6 months.

67.  After considering totality and bearing in mind the aggravating features of multiple offences and Mr Yau’s appalling criminal record in this case, I adopt a global starting point of 4 years and 6 months’ imprisonment inclusive of the 6 months’ enhancement.

68.  Mr Yau pleaded guilty in time and so is entitled to a 1/3 discount in sentence.  I can discern no other mitigating factors to justify any further discount.

69.  For each of the theft charges, I adopt a starting point of 15 months’ imprisonment.

70.  For the burglary charge, I adopt a starting point of 2 years and 9 months’ imprisonment.

[Mr Yau, please stand]

71.  For Charges 1 to 6, 8 to 12, the sentence will be 10 months each.  I order 1 ½ month of each of the sentences for Charges 2 to 6, 8 to 12 to run consecutively to the sentence for Charge 1, making an aggregate of 25 months’ imprisonment for the theft charges.

72.  For Charge 7 of burglary, the sentence will be 22 months’ imprisonment. I order that 11 months of this sentence to run consecutively to the aggregate sentence of 25 months for the theft charges, resulting in the total sentence in this case of 36 months’ imprisonment which is 2/3 of the global starting point.