HKSAR v. YAU KWAI ON

DCCC 626/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 626 OF 2013

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Reasons for Sentence

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1.  The defendant pleaded guilty to charges of attempted burglary and two charges of burglary. The first two offences, the attempted burglary and burglary, were committed on the same day, 4 April 2013. The third offence was committed a few weeks later on 22 April. The offences were all committed in the early hours of the morning at commercial premises.

2.  In relation to Charge 1, the premises is the Tung Hing Restaurant, the Ground Floor, Kwong On Building in Wan Tau Street, Tai Po.  It has a front door and two rear doors.  The premises were secured at 1.30 am on 4 April.  In the following morning, staff of the restaurant noticed there were prizing marks on one of the rear wooden doors.  Notwithstanding the prizing marks on the door, the lock was still secured entry to the premises.  The cost of repairing of the rear wooden door was $1,500.

3.  The premises involved in Charge 2 is a bar known as the Barbie Bar which is again a ground floor premise in the Mee Lee Building in Kau Hui Chik Street in Tai Po.  The bar has a main door and a rear door and a CCTV camera was installed inside the bar.

4.  At about 3 am on 4 April, the proprietor of the bar checked that the rear door was closed, but he was not sure if it was locked, and the front door was secured by padlock before he left.  A few hours later, at 7 am, the cleaner for the premises informed the owner that the cashier register had been opened.  The owner returned to the bar and found $11,500 was missing from the register and the hard disc of the CCTV camera, which is valued at $2,000, was missing.  And there were no prizing marks on the doors and it is assumed that the rear door had been left open.

5.  The premises in Charge 3 are the Bahia Chung King BBQ Restaurant on the Ground Floor of No 4 Wan Tau Kok Lane in Tai Po.  The restaurant had a front glass door and a rear door.  Again, a CCTV camera was installed inside the restaurant. 

6.  At 1.30 am on 22 April, the owner of the premises locked the front glass door and used a steel chain to secure a numeric padlock, which is referred to as Exhibit 1, to secure the front glass door handle from the outside before leaving the restaurant.

7.  Later that morning, at 9 am, the owner was informed by a staff that the steel chain and Exhibit 1 were missing and the front glass door was unlocked.  The owner returned to the restaurant and found that there were signs of ransacking and the drawer of the cashier counter had been prized open and cash of $6,000 was missing from the drawer.  A cash register valued at $5,000, Exhibit 2, containing coins of about $100 was missing from the cashier counter.

8.  CCTV footage recorded that a male had entered the premises wearing a face mask.  The male had prized open Exhibit 1 and the front glass door and gained entry at about 5 past 2 in the morning.  The man was seen to have put on gloves and took a chopper from the kitchen to prize open the drawer of the cashier counter and ransacked the drawer.  He then left the premises taking with him the cash register. 

9.  On 27 April 2013, a party of police officers were on patrol in Cheung Shu Tan, Tai Po.  They went to No 6G of Cheung Shu Tan Village and inside the premises the officers recovered the cash register, Exhibit 2, which was broken inside a plastic bag.  And in the same plastic bag they recovered the numeric padlock, Exhibit 1.

10.  The defendant was seen inside the premises and he was questioned.  The defendant initially lied about where the Exhibit 2 had come from.  He said it belonged to a friend who lived in a nearby hut.  And the defendant agreed to lead the officers to the  hut and when he did so, there was nobody there.  The defendant admitted that he was lying and that the exhibit was in fact his. 

11.  One of the officers also recovered inside the premises a chisel inside a shoulder bag on the table in the hut.  And they also recovered a pair of shoes, a pair of trousers and a black T-shirt.  The defendant admitted that these items of clothing belonged to him.

12.  He was arrested for the three burglaries, the subject of the charges, and under caution admitted all three offences.  He said that he committed the offences because he was short of cash and he sent all the money to China.    

13.  The defendant has a number of matters recorded against him.  He has appeared before courts on three previous occasions in respect of four offences.  Three of the offences are burglary.  When he appeared before the court on 22 February 2010 for two burglaries, he was sent to prison for a total of 22 months.  And while serving that sentence, he was dealt with for a third burglary offence on 21 September 2010 and was sentenced to 19 months in respect of that burglary. 

14.  The defendant is aged 30.  He was born in Hong Kong and educated to Form 3 level.  He was released from prison after his last incarceration on 21 June 2012.  I am told that he lives alone and he comes from an indigenous family in the Tai Po area.  I am told that his parents who are now deceased and he lives in their village house.  He has a younger brother and sister but he lives apart from them and has little contact with them.

15.  He is married but separated from his wife who lives with the daughter, aged 13, and the son, aged 10, on the mainland, and he has very little contact with them.  He does, however, have a girlfriend on the mainland and I am told that she is suffering from an illness which requires medical treatment and he is paying for that treatment. 

16.  I am told that the defendant did have casual employment as a cook earning $12,000 a month when he was in work.  However, this work was on a casual basis because from time to time he needed to go to the mainland to look after his girlfriend. 

17.  The defendant is well aware of the tariff of this sort of offence; he has been sentenced for burglary offences on three previous occasions.  Notwithstanding his previous convictions, I have decided not to increase the usual starting point for offences of this nature.  However, if you continue to commit this type of offence, you will find that the sentences will become increasingly longer. 

18.  I take the usual starting point of 30 months’ imprisonment in respect of each of the offences.  The defendant is entitled to credit for his guilty plea, so those sentences will be reduced by one-third to 20 months’ imprisonment.

19.  I have to consider the question of totality. These are three separate burglaries albeit that two of them were committed on the same night.  I have decided that 4 months of the sentence on Charge 2 shall run consecutive to the sentence on Charge 1, and 4 months of the sentence on Charge 3 shall run consecutive to the sentences on Charge 1 and 2.  The defendant will therefore go to prison for 28 months.