CRIMINAL CASE NO. 73 OF 2011
COURT: You, Leung Lok-sing, the 1st defendant, and Yeung Tsz‑kwong, the 2nd defendant, have pleaded guilty to four counts of burglary, Counts 3, 9, 10 and 12, and one count of robbery, Count 6. You, Wong So-fun, the 3rd defendant, have pleaded guilty to being party to three of the four burglaries, those that are the subject of Counts 3, 10 and 12.
The offences before the court involve five separate residential flats in high-rise buildings in Kwun Tong, Tseung Kwan O and Chai Wan. Each offence involved gaining entry to a high-rise building during the middle of the day when the occupants were likely to be out, locating a flat which was believed to be unattended, prising open the doorway with a crowbar, and then gaining entry with the object of stealing whatever items of value could be found inside.
The offences occurred over a period of just over six months between the end of October 2009 and the beginning of June 2010.
Insofar as the burglaries in which you all three were involved, it is clear from the facts that have been put before the court that they were not offences committed on impulse but committed in accordance with a carefully pre‑planned modus operandi.
You, Leung Lok-sing, the 1st defendant, would wait until someone was entering or leaving the building, and you would then enter the building when the door was open. When inside, you would try to ascertain which flats were unattended and therefore which flat was a possible target for burglary. Having targeted a likely flat, you would then contact the 2nd defendant and the 3rd defendant.
You two, the 2nd and the 3rd defendants, would then gain entry to the building to join the 1st defendant. Like the 1st defendant, you would wait until someone was entering or leaving the building in order to get access. In order to give the impression that you were also a resident of the building, you, the 2nd defendant, would be carrying a packet of toilet rolls or paper tissues and other items that gave the appearance that you had been shopping.
You, the 3rd defendant, would be carrying a rucksack on your back. I accept the prosecution’s submission that the only reasonable inference on the facts is that you were carrying in the rucksack the crowbars and work gloves that would be used by the 1st and 2nd defendants to commit the burglary. The fact that it was a woman carrying the rucksack into the building would be less likely to attract attention.
Very shortly after entering the building, and presumably after you had handed over the housebreaking implements to the 1st and the 2nd defendants, you would then leave the building, leaving it to them to break into the flat in question. You would then leave the building and wait for them outside.
Insofar as the three burglaries in which you were all involved are concerned, the residents were not at home at the time of the offence. It was not until they arrived home that they would have found the doors to their homes prised open and learnt what had occurred.
The first of those three burglaries, the subject of Count 3, was committed on 30 October 2009 in a flat in Kwun Tong. The door had been prised open and two bedrooms ransacked. Presumably because you found nothing worth taking, nothing appeared to be missing.
The second of the three burglaries to which you have all three pleaded guilty is the subject of Count 10, and was committed in a flat in Tseung Kwan O. The wooden door and metal grille to the flat were prised open. The damage that was caused to the door subsequently cost the householder $10,000 to repair. When the householder returned, she found missing a Nikon camera, a watch, jewellery worth about $14,500, and a small amount of cash. The jewellery has never been recovered, but the camera, watch and cash were found in a rucksack in the lavatory of a flat on the same floor. The reason for that is that you, the 1st and 2nd defendants, had moved on with the loot from this first burglary to burgle a second flat on the same floor.
That burglary is the subject of Count 9 against you, the 1st and 2nd defendants, which was presumably committed after you, the 3rd defendant, had left the building. Inside the flat you stole $30,000 in cash and jewellery worth about $60,000 before you were disturbed by the return of the occupant. He found you, the 1st defendant, still inside the flat. He tried to use the iron grille to shut you in the flat, but you threatened him with what appeared to be an iron pipe which you swung at him. He ducked, and you escaped.
Presumably it was in your hurry to escape that you left the rucksack containing some of the items stolen from the first flat. Neither the cash nor the jewellery stolen from the second flat has been recovered.
The third burglary in which you all three were involved is the subject of Count 12 and was committed on 8 June last year. On that occasion the police had you under observation. You adopted the same modus operandi as before. After you, the 1st and 2nd defendants, had ransacked the flat, you stole the items referred to in the charge, which were worth just over $100,000. Fortunately the police managed to intercept all three of you, and the property was recovered.
At the time of your arrest, you, the 3rd defendant, were in possession of the two crowbars and the two pairs of work gloves that had been used in the burglary.
In considering the appropriate sentence for the three offences of burglary in which all three of you were involved, Counts 3, 10 and 12, and the burglary for which you, the 1st and the 2nd defendants, were involved, Count 9, I have taken into account that these were all burglaries committed in the middle of the day when you believed the occupants of the flats were out.
I bear in mind that in the case of Count 3 nothing appears to have been stolen, that insofar as Count 10 is concerned, some of the property was fortuitously recovered, and that the police managed to retrieve from you the property stolen in the burglary which is the subject of Count 12.
In all cases, the householders would have had the not insignificant expense of having to have their doors and iron grilles repaired.
Burglary of domestic premises is not only an offence against property, but also an offence against the person. It violates the privacy of the home of another person or another family. It violates their sense of security. For that reason, burglary of domestic premises is viewed by the court very seriously, and the courts have said that subject to circumstances of aggravation, 3 years’ imprisonment is normally the proper starting point for a first offender.
There are circumstances of aggravation in these burglaries.
They were not opportunistic offences, but carefully planned. More than one person was involved, and each burglary was part of a series of similar offences.
Insofar as you, the 1st and 2nd defendants, are concerned, a matter of particular aggravation is that each of you have been convicted of offences of burglary before.
In your case, 1st defendant, you have been before the courts in respect of 16 previous burglaries and three attempted burglaries. I do take into account that your last conviction was 14 years before you started committing these offences.
In your case, 2nd defendant, you have been before the courts for two previous offences of burglary.
I am satisfied in the light of these matters that a starting point of 4 years’ imprisonment in respect of each of the burglaries that are the subject of Counts 3, 9, 10 and 12 is appropriate in the case of you, the 1st and 2nd defendants.
In your case, Wong So-fun, 3rd defendant, I am prepared, with some hesitation, to adopt a starting point of 3 years’ imprisonment in respect of each of the burglaries to which you have pleaded guilty. I adopt that starting point despite the fact that you were still on probation at the time the burglary in Count 3 was committed. The offence for which you had been put on probation was not a burglary offence, and you had no other previous convictions. Your role in these offences, although important to the success of the enterprise, did not involve you yourself physically breaking and entering the homes of others.
Each of you has pleaded guilty and is therefore entitled to the usual one-third discount by reason of that plea. I have listened to all your counsel have said on your behalf. In particular, I bore in mind your family circumstances and the hardships that imprisonment will necessarily result to your children and those who have to look after them. I do not, however, find that those circumstances warrant any further discount on sentence beyond the one-third to which I have already referred.
The sentence that I therefore pass on you, 1st and 2nd defendants, on each of Counts 3, 9, 10 and 12, is one of 32 months’ imprisonment; 2 years 8 months.
Insofar as you, the 3rd defendant, are concerned, the sentence I pass on each of Counts 3, 10 and 12 is one of 2 years’ imprisonment.
The robbery count, Count 6, against you, the 1st defendant and you, the 2nd defendant, is a much more serious offence. You used the same modus operandi to gain entrance to the building in Lam Tin, Kwun Tong, and prised open a door of a flat on the upper floor. Presumably unknown to you at the time, an occupant of the flat was at home. He was a bus driver who did shift work, and although it was 12.30 pm, he was asleep in bed at the time. He was woken by the sound of something falling, and went out of the bedroom to find you both in his flat. Both of you were wearing work gloves. One of you was carrying a crowbar.
Instead of fleeing, you pushed him to the ground. He was struck on the head by a crowbar and with hands. While one of you held him down, the other tied him up with the cable to his mobile phone charger and some curtain cord. He continued to be held down by one of you while the other ransacked the flat.
Apart from the cards in his wallet, $18,750 in cash and 2,250 RMB was stolen, and $27,000 worth of jewellery was also stolen. At one point the victim shouted that you should leave, as his family members would return home. One of you then stuffed a T-shirt into his mouth and wrapped another T-shirt around his head before leaving him tied up in this way. 10 minutes later he managed to stand up, go to the door, and shout to his neighbours for help, and eventually, phone the police.
He was taken to hospital complaining of pain to his forehead, chest and left forearm. He had bruises on the same forearm. Fortunately, x-rays showed that he had sustained no fractures, and the medical findings were limited to tenderness. It follows that the blows he had received from you were not very severe. Despite that, it would have been a terrifying experience for him. To be woken up and find two men in your home is terrifying enough, but to be then hit on the head with a crowbar, tied up, and then have a T-shirt stuffed in your mouth makes this a very serious offence indeed.
I am satisfied that the appropriate starting point for this robbery is 8 years’ imprisonment. After the one-third discount to reflect your pleas of guilty, I sentence each of you, 1st and 2nd defendants, to 5 years 4 months’ imprisonment in respect of the offence of robbery in Count 6.
I go on to consider the question of totality of sentence in each of your cases. Insofar as you, the 1st and 2nd defendants, are concerned, I am satisfied that the appropriate overall sentence in each of your cases is 7 years 4 months’ imprisonment. That would reflect an overall starting point of 11 years’ imprisonment before the discount of one-third for your pleas.
The sentences I pass on you, the 1st and 2nd defendants, are therefore as follows.
On Count 6, the robbery count, 5 years 4 months’ imprisonment.
On Count 3, 32 months’ imprisonment, 6 months of which are to run consecutively to the sentence on Count 6.
On Count 9, 32 months’ imprisonment, 6 months of which are to run consecutively to the sentence on Counts 3 and 6.
On Count 10, 32 months’ imprisonment, 6 months of which are to run consecutively to the sentences on Counts 3, 6 and 9.
On Count 12, 32 months’ imprisonment, 6 months of which are to run consecutively to the sentences on Counts 3, 6, 9 and 10.
That means a total of 7 years 4 months’ imprisonment.
Insofar as you, the 3rd defendant, are concerned, I am satisfied that the appropriate overall sentence is one of 3 years’ imprisonment. That would reflect an overall starting point of 4½ years’ imprisonment before the discount of one-third to reflect your plea.
The sentences I pass on you, the 3rd defendant, are therefore as follows.
On Count 3, 2 years’ imprisonment.
On Count 10, 2 years’ imprisonment, 6 months of which are to run consecutively to the sentence on Count 3.
On Count 12, 2 years’ imprisonment, 6 months of which are to run consecutively to the sentences on Counts 3 and 10.
In committing the offence in Count 3 you were in breach of the probation order that was made on 3 December 2008. Having considered the matter, I have decided to make no order in respect of that breach.