HKSAR v. WU CHI MAN AND ANOTHER

DCCC 490/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 490 OF 2013

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REASONS FOR SENTENCE

D1 and D2 are jointly charged with an offence of "Attempted Burglary" (Charge 1) and an offence of "Possession of instruments fit for unlawful purposes" (Charge 3). D1 is also charged with an offence of "Resisting a police officer in the due execution of his duty" (Charge 2).

2. D1 pleaded guilty to Charges 1 and 3, and D2, Charge 1.  The prosecution applied to have Charges 2 and 3 to be left in the court file; not to be proceeded against D1 and D2 respectively without leave of court.  I granted the application.

Summary of Facts

Charge 1 (against D1 and D2)

3. About 3:40 am on 11 March 2013, police officers saw D1 and D2 walking together along Hip Wo Street towards Kwun Tong Road.  They were talking on mobile phones and looked at each other from time to time.  Suddenly, they separated and walked on different sides of the road, but still in the same direction.

4. When D2 reached a private medical clinic situated at No.143 Hip Wo Street, D1, who was on the opposite side of the street, pointed his finger to the metal gate of the clinic.  Upon seeing D1's gesture, D2 sat on the floor right in front of the metal gate.  He began to temper with the lock of the clinic's metal gate with constant movements of his hands.  D1 remained in the vicinity as a lookout.

5. After a while, D2 stood up and made a call using his mobile phone.  D1 and D2 then moved towards a nearby 7-11 Store.

6. About 3:50 am, D1 was arrested for "Attempted Burglary".  Almost at the same time, D2 was intercepted inside the 7-11 Store.  He was holding 2 bunches of (a total of 7) skeleton keys.  Under caution, he said "Big Twin gave me 2 bunches of skeleton keys and asked me to open the lock of the stores for him to go inside for burglary.  I tried one but failed to open and I was then arrested by you."  D1's nickname is Big Twin.

Charge 3 (against D1 only)

7. At the time of arrest, D2 also had a car key with him.  D2 stated that it is the key to a private car (RD 3895) parked in Wo Lok Estate in Kwun Tong.

8. The Police then went to search RD 3895 and found the following items :-

(i) 1 skeleton key, found inside the ash tray in the front panel;

(ii) a pair of pliers (red and black in colour), found on the floor of the right rear passenger seat;

(iii) 1 screwdriver, found in the storage partition on the door of the driver seat; and

(v) 1 foot-long screwdriver, a set of hex keys, 1 T-shaped hex pliers and 1 metal clamp all found in the boot.

9. RD 3895 belonged to D1 at the material time.  D1 now admits that he possessed the 7 skeleton keys (found on D2) and all the items found inside RD 3895 listed above, and intended to use them for the purpose of burglary on the offence date.

Mitigation

D1

10. D1 is now 41. He has 15 criminal records including 3 burglary-related offences and 5 theft-related offences. His last conviction is dated July 2011; he was sentenced to 20 months' imprisonment for "Attempted Burglary". He was released in June 2012.

11. D1's counsel Mr. CHAN informed me that D1 came to Hong Kong from the mainland with his family in 1982 at the age of 11. He received up to F.1 education. He was a casual maintenance and decoration worker with a daily wage of $400. At the time of the offences, he had no work and was receiving welfare in the sum of $2,000 per month. D1 has a girlfriend (Madam LAU), who has a 2-year-old child from her previous marriage. Sadly, Madam LAU suffers from Hepatitis C and her child contracted the virus during gestation. Mr. CHAN stated that both Madam LAU and her child require regular medical care and medication. The child also suffers from hearing and language defects and is under diagnosis.

12. Mr. CHAN further informed me that after D1 was arrested, Madam LAU discovered that she was pregnant with D1's child. Fearing of her inability to look after 2 children, she had an abortion on 30 April 2013. D1 was only notified by Madam LAU after the procedure. D1 felt very upset because their child was lost as a result of his wrongdoing.

13. Mr. CHAN submitted that in March 2013, D1 and Madam LAU had many quarrels over their family finance. Seeing that D1 was under financial pressure, D2 suggested D1 to commit burglary to earn some quick money. D1 succumbed to D2's suggestion.

14. Regarding the car, Mr. CHAN submitted that it was paid for by D1, but registered in his brother's name. D1 purchased the car at $5,000 in 2013, but had only paid $1,000 to the previous owner. The balance of the purchase price is still outstanding. Mr. CHAN explained that D1 purchased to car so that he could drive himself to work instead of taking public transportation. Unfortunately, D1 was not given enough work by his principal contractor. Letters from D1 and his principal contractor were placed before me; their contents are duly noted.

D2

15. D2 is now 35. He has 4 criminal records including 1 burglary offence. His last conviction is dated May 2008; he was sentenced to 2.5 years' imprisonment for "Burglary".

16. D2's counsel Mr. POON informed me that D2 was born in Hong Kong. He completed F.3 education. D2 had a divorce in 2004. He has 2 teenage daughters who reside with his ex-wife. He also has a 2-year-old daughter with his former girlfriend; that daughter resides with her mother. D2 has been working as a driver for a garment factory since 2005 earning $13,000 per month. Regrettably, the factory was closed in 2007. Thereafter, he could only take up odd jobs as a part-time chauffeur.

17. Mr. POON submitted that D2 has made full and frank admissions upon arrest and has on 11 July 2013 indicated his willingness to assist the prosecution in this case. Furthermore, it has all along been D2's stance that D1 was the mastermind who suggested to commit burglaries and provided the tools. A letter written by D2 and other supporting documents were placed before me; their contents are duly noted.

Sentence

18. In the course of mitigation, both D1 and D2, through their respective counsel, tried to convince the court that the other party was the instigator/mastermind of the burglary. For the purpose of sentencing, I need not determine who the ring leader was. As revealed in the Summary of Facts, what they did is clear. Although they played different roles, in my view, they are equally culpable. There is no need to distinguish their roles or to apportion their criminality. As confirmed by prosecuting counsel Mr. MA, I note that D2's indication of his willingness to assist the prosecution has no bearing on D1's decision to plead guilty to the charges.

19. 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.

20. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. I have borne in mind the comments made by the Court of Appeal in HKSAR v Po Yan Chuen [2002] 2 HKC 172 and HKSAR v NGAI Yiu Choi CACC 370/2010 on sentencing of "Attempted Burglary". I accept that in the present case, no one was alarmed by the defendants' activities; however, both D1 and D2 are not new to the "Burlgary" offence. In other words, the mitigating aspect is offset by an aggravating feature—repeated offenders. Hence, I consider the appropriate starting point to be still 2.5 years' imprisonment. A one-third discount is given for the guilty plea, reducing the sentence to 20 months. To reflect D2's willingness to assist the prosecution, I will grant him a further nominal discount of 2 months. For Charge 1, I sentence D1 to 20 months' imprisonment; and D2, 18 months.

21. For Charge 3, the 8 skeleton keys are clearly indicative of burglary intent. In fact, D2 was in possession of 7 and had tried to use them. The maximum sentence for this offence is 2 years' imprisonment. I adopt a starting point of 9 months' imprisonment. A one-third discount is given for the guilty plea; I sentence D1 to 6 months' imprisonment for this charge.

22. Other than the 7 skeleton keys found on D2, all the items specified in Charge 3 were found in D1's car, which was parked at some distance away from the crime scene of Charge 1. In other words, D1 did not intend to use most of those tools for Charge 1 but some other crime(s) on other occasion(s). Hence, Charges 1 and 3 are not part and parcel, at least not entirely. Having considered the totality principle, I order 2 months of the sentence for Charge 3 to be served consecutive to Charge 1. The total prison term for D1 in respect of both charges is 22 months.