HKSAR v. YU SZE LONG

DCCC 392/2021

[2021] HKDC 1178

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 392 OF 2021

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  Mr Yu pleaded guilty before me to one charge of Attempted Burglary contrary to section 11(1)(a)  and (4)  of the Theft Ordinance, Cap 210, and section 159G of the Crimes Ordinance, Cap 200. The particulars are that he, on 21 July 2020, in Hong Kong, attempted to enter as a trespasser part of a building known as Unit B19, 5^th Floor, Kin Tak Fung Industrial Building, No 174 Wai Yip Street, Kwun Tong, Kowloon, with intent to steal therein.

Facts admitted by Mr Yu

2.  PW1 and Mr Yu were occupants of neighbouring units in an industrial building.  They were acquaintances.

3.  On 21 July 2020 at around 12:25 am, while working alone in his unit namely Unit B19, PW1 heard someone prize the door and rattle the doorknob from the outside.  On opening the door, PW1 saw Mr Yu in front of him, with a long metal object of about 25 cm in length in his right hand.

4.  PW1 asked Mr Yu why he was tampering with the door.  Mr Yu fled without reply.  PW1 reported the matter to the police.

5.  Before and after police arrived, PW1 received a series of calls and WhatsApp messages from Mr Yu.  The contents are basically that Mr Yu apologized for the incident and he promised not to enter the unit to steal again and he asked PW1 not to make a report to the police.  Mr Yu asked to meet PW1 in person.

6.  They made an arrangement to meet somewhere in Kwun Tong on the same day.  When Mr Yu emerged in front of PW1, police previously in ambush turned overt and arrested Mr Yu.

7.  During a cautioned VRI, Mr Yu stated, among other things:-

(a)  He knew that breaking into the unit was illegal; and

(b)  He had financial difficulties with outstanding loans of around $35,000.

8.  Some damage was found at the subject unit on the top and bottom parts of the doorknob.

9.  Mr Yu now admits he attempted to enter the subject unit with intent to steal therein.

Criminal record

10.  Mr Yu has a clear record.

Antecedents

11.  Mr Yu is aged 48 (46 at the time of the offence).  After graduation from university, he had worked as clerk and computer technician.  He later started an online business and worked as a part-time waiter since 2006.  Mr Yu is single and lives alone in Yuen Long away from his parents and younger sister.

Mitigation

12.  Ms Sezen Chong of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Yu.

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

14.  Ms Chong submitted that the usual starting point for burglary of non-domestic premises is 2½ year’s imprisonment; however, a degree of planning, and thus a degree of premeditation is already built into that starting point; that starting point can be lowered in the case of an opportunistic burglar: HKSAR v Sim Ka Wing, CACC 450/2000.  Ms Chong acknowledged that an attempted burglary may carry the same starting point as that of burglary: HKSAR v Mohammed Farooq, CACC  406/2013.

15.  Further, Ms Chong submitted that the court may adjust the starting point by taking into account the previous good character and personal circumstances of the accused.

16.  Ms Chong relied on HKSAR v Leung Pui Shan [2008] 4 HKLRD 14, CACC 317/2007, at paras 13-14, to submit that the court should be aware of the danger of being over-mechanical in sentencing and that what must be borne in mind is that sentencing is an art which must carefully be moulded not only to the category of the offence but also to the offender.

17.  The fact that Mr Yu is a person of previous clear record was emphasized along with the fact that he has been a law abiding citizen for almost 47 years and he comes from a stable family with full support from parents and sibling. It was submitted what happened was a single fall from grace and that the risk of re-offending is low.

18.  Ms Chong further submitted that the offence took place in the heat of Covid-19 pandemic when Mr Yu had no income; that after the offence, when the pandemic was receding, Mr Yu was able to find a job as a part-time waiter and he has worked as such since February 2021, earning about $7,500 per month; in addition, Mr Yu has been engaging in an online business selling models, robots and toys.  Together, Mr Yu has been able to make up to an amount of $15,000 a month.  Mr Yu has managed to pay off his previous debts totalling $35,000.

19.  Mr Yu is remorseful and admitted the offence to the victim, the police and he pleaded guilty at the first opportunity.

20.  Ms Chong asked for a lenient sentence on behalf of Mr Yu.

Sentence

21.  The usual sentence after trial for this type of burglary is 2½ years’ imprisonment.

22.  What Mr Yu did could not be described as acts typical of an opportunistic burglar.  Obviously, he waited until deep into the night before he attempted entry into the subject premises with tool(s).  I note the offence is an attempted one and consequently there was no property loss.

23.  Mr Yu has a clear record.  He had a good education.  He has stayed clear of transgression of the law until he was almost 47 years old.  That is something to his credit for which I will give him some discount in sentence over and above the usual 1/3 for a timely plea of guilty.

24.  In the circumstances, I will adopt as a starting point 2½ years’ imprisonment.  I reduce it by 1/3 to reach an interim figure of 20 months.  I further reduce one month to reflect his previous good character.

(Mr Yu, please stand)

25.  The sentence that I will hand down in Mr Yu’s case is 19 months’ imprisonment.