HKSAR v. FUNG MAN CHUN AND OTHERS

DCCC871/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 871 OF 2009

--------------------

--------------------

----------------------------

Reasons for Sentence

----------------------------

1.  The three defendants pleaded guilty to a charge of attempted burglary.

The facts of the prosecution case

2.  At about 0447 on 27 June 2009 the police patrol on board a police vehicle along Nga Tsin Wai Road near Nga Tsin Long Road, PW2 saw D1, D2 and D3 standing outside the shop.

3.  PW2 then walked up to the shop and saw D1 squated down in front of the shop while D2 and D3 were standing behind D1.

4.  PW2 saw D1, who was wearing a pair of gloves, used hydraulic pliers to break open one of the padlocks. D1 put the padlocks and a bar into a bag, while D2 shouted, “Someone is around.” D3 looked around suspiciously. D1, D2 and D3 then walked hastily towards Prince Edward Road and got onto a vehicle. D2 went on to the driver’s seat.

5.  During a search of the vehicle the following items were found: three pair of gloves, three screwdrivers, three masks, one green cutter, three plastic bags, one box containing a pair of hydraulic pliers.

6.  At about 9 o’clock on 27 June 2009, PW1 returned to the shop. He found a number of policemen outside the shop. He then checked the roller shutter and found two padlocks were missing from the main gate. They were recovered outside the premises. PW1 also confirmed the shutter had been securely locked by four sets of padlocks together with four L-shaped padlock bars.

7.  PW1 also confirmed that the shop had $5 million dried seafood products and the business hours of the shop was between 11 o’clock to 8 o’clock in the evening.

The criminal record of the defendants

8.  D1 has six previous convictions. All are unrelated offences, such as AOABH, fighting in public place, unlawful possession of dutiable goods and obstructing a police officer.

9.  D2 has three previous convictions. Two theft offences in 1992 and 1995, and one possession of false instrument in 1995.

10.  D3 has two previous convictions. Common assault in 2003 and fighting in public place in 2006.

Mitigation

11.  D1 is 28. He was a construction site worker prior to the remand and earned about $6,000 to $7,000 per month. His father is now retired, mother passed away; two elder sisters, one is an air stewardess and the other is an insurance broker. An elder brother has lost contact. He committed the present offence as he owed three months’ rent.

12.  D2 is now 31. Worked as a transportation worker prior to the remand and earned about $7,000 to $8,000 per month. He committed the present offence because his father suffered from cancer this year and he wanted to help the family financially. All his family members - mother, brother and sister - all write to this court to express one thing: that the defendant loves his family and he committed the present offence out of foolishness. His family still stand by him despite the fact that he had committed the present offence.

13.  D3 is now 24. He married in 2008 because his wife was pregnant; their son is now one and a half years old. The defendant committed the present offence purely because he wished to make quick money to improve the living standard of his young family. In both of his own letter and his wife’s letter, the defendant had made undertaking to his wife that he will become a practical man after his release from jail.

14.  All the three defendants expressed remorse and regret in their own deeds.

Sentence

15.  The three defendants have committed a very serious offence. Although there is guideline for non-domestic burglary, a starting point of 2½ years, but when there are present of aggravating factors, the sentence should be adjusted upward.

16.  In the present case, the three defendants acting in concert to carry out this illegal activities in the early hours of the morning at about 4.50 am when the street was still quiet and all the shops were closed.

17.  The shop has a roller shutter and secured by four sets of padlocks together with four L-shaped padlock bars. The number of padlock and padlock bars indicated that the shop owner was very careful in ensuring that the shop was not easily opened. Even to open this padlock bar requires strong hydraulic pliers to open them and all these procedures take time.

18.  There were altogether two brand new hydraulic pliers with the defendants. When D1 used the pliers to break open the padlock, he was wearing a pair of gloves. That was to eliminate any fingerprint contact with the pliers and the padlocks. There was also a bag to put the padlocks once it was broken open. There was also an additional hydraulic plier inside the vehicle. That means when necessary there was an additional plier to stand by for further use.

19.  D2 stood behind D1 when he was in the act of breaking open the padlock. D3 stood further away behind D2. They were clearly to assist D1 to make sure no one was around or approached them. That was the reason when PW2 walked up to them, D2 shouted, “Someone is around,” while D3 was looking around suspiciously.

20.  There was also a vehicle parked nearby for easy escape. The shop was located at No. 18 Nga Tsin Long Road, while the vehicle was parked outside No. 8 Nga Tsin Long Road. It was only five-shop space away. The shop sells expensive dried seafood products such as shark’s fin, abalone and bird’s nest.

21.  PW1 said that the shop stored $5 million worth of products. The defendants must have known what kind of products that the shop was selling before they embarked on this illegal activity, bearing in mind there were two new pliers, three masks and gloves.

22.  On D1’s body, a torch was found and that was to be used once when they entered the shop because it was still dark at that time.

23.  To conclude, there are a number of aggravating features in the present case. Three defendants acting in concert, it was a well-planned and pre-meditated attempted burglary case. The shop contained $5 million worth of products. Against this background, I decline D3’s counsel request to call TC and PO reports as it is inappropriate to sentence the defendant to TC or probation officer’s order for such a serious offence.

24.  To this end, I adopt a starting point of 3½ years, reduced to 28 months to reflect the defendants’ guilty plea. So all defendants are sentence to 28 months.