HKSAR v. SUEN CHI WAI

DCCC 58/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 58 OF 2015

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Reasons for Sentence
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1.  The defendant pleaded guilty to one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210. Particulars are that the defendant on 24^th November 2014, having entered as a trespasser no.184 Fuk Wing Street, Cheung Sha Wan, stole therein two copper stripes.

Summary of facts

2.  No. 184 Fuk Wing Street is a five-storey residential building with one unit on each floor. The defendant was spotted by two residents of the building, PW1 and PW2, at around 8:55 pm on 24^th November 2014 picking up a rucksack and a shoulder bag at the staircase and went up.

3.  About 10 minutes later, PW1 and PW2 returned to the building and heard sound of chiseling at the staircase of the first floor. They saw the defendant walking down the staircase after the sound stopped, carrying 2 dark coloured bags. Thinking that the defendant was a renovation worker, PW1 asked the defendant to dispose of two garbage bags. The defendant obliged and entered a nearby rear lane with the two bags that he was carrying together with the two garbage bags. He returned to the building empty handed, picked up two more garbage bags and disposed of them as well.

4.  When the defendant next walked back to the building, at the sight of some uniform Police officers, he turned into the refuse collection place at Fuk Wing Street. PW1 notified the officers about the defendant’s behaviour. The defendant was intercepted and arrested.

5.  Under caution, the defendant said that he went to the building to cut off copper stripes for sale because he did not have any money. Police found his rucksack and shoulder bag in the rear lane, inside were a roll of copper stripe, a pair of plier, a screwdriver and a torch. Upon investigation, Police found the copper stripes at the staircases on the 4^th and 5^th floor cut off. At the later cautioned interview, the defendant admitted that he had cut off those copper stripes with his pliers and screwdriver and bagged one of the rolls.

6.  The total cost of replacing the copper stripes was about $5,000.

Previous convictions

7.  The defendant has 18 previous court appearances. 3 of the convictions were for burglary. 10 convictions were for theft. His last convictions were for burglary and theft on 21 May 2012 when he was sentenced to 2 years’ imprisonment. He was last discharged from prison on 15 May 2013.

Mitigation

8. The defendant is 50 years old. He comes from a poor family and was only educated up to primary level. The defendant is single and lives alone with no permanent address. Because of his education level, he has only been able to work as a delivery and kitchen worker. The defendant did pick up the skill of repairing air-conditioners. Since his release from prison in 2013, he had not been able to find employment and has been receiving about $700 CSSA per month. The defendant would supplement his income by picking up cardboard paper in the street to sell. The defendant committed the present offence to sustain himself. He is remorseful and apologizes for the damage he had done.

9. Letters written by the defendant and his pastor were handed up. The defendant has been converted to the Christian faith and promises that this will be his last offence.

10. Mr. Tse pointed out that the offence was committed in the common area of a residential building. There is no evidence that the defendant had intended to break into any units to steal. His intention all along was to get something from the common area. It is Mr. Tse’s submission that the court should take this as a mitigating factor and adopt a lower starting point than the court would otherwise do for burglary of a domestic premises.

11. As to the defendant’s conviction records, Mr. Tse observed that the defendant is not a recalcitrant criminal of the most serious and offensive nature.

Sentencing Guidelines

12. The Court of Appeal had, in R v Wong Man Cr. App. 372 of 1992 and R v Chan Yui-man Cr App 36 of 1988, laid down guidelines for sentence in case of burglary of non-domestic and domestic premises where the defendant is a first offender of full age. The court set the respective starting points at 2 and a half years’ and 3 years’ imprisonment.

13. The burglary in our present case took place in the common area of a residential building. There is no evidence that the defendant had any intention of entering any of the residential units to steal. Neither Mr. Lee for the prosecution nor Mr. Tse for the defendant was able to find any authorities directly on the point of whether a theft that took place in the common area of a residential building would be regarded as burglary of a domestic or non-domestic premises.

14. Mr. Lee very fairly indicated that the position of the prosecution is that the burglary should attract a slightly lower starting point than that of a domestic premises, given that there was no evidence that there would be any risk of confrontation inside a victim’s home.

Sentence

15. The maximum sentence on conviction upon indictment for the offence of burglary is that of imprisonment for 14 years.

Domestic or non-domestic

16. I find first of all that the building was in fact a residential building and the burglary must therefore be regarded to have been committed on domestic premises.

17. Although the premises was a residential building, there is no evidence that the defendant had intended to enter any of the residential units to steal. The burglary was committed at around 9 pm, a time when residents would usually be home but not yet gone to bed. Although there is a risk of confrontation with the residents, and there was in fact confrontation, it did not take place inside the residential units. There is evidence to suggest that it had always been the defendant’s intention to steal the copper stripes and no evidence to suggest that he had intended to enter any of the residential units to steal. There was no risk of any of the occupants in the residential units being subjected to the horror of having their home invaded by a burglar.

18. I find that the guidelines to be applied is that for domestic premises, but with a downward adjustment to reflect the lessened seriousness.

Premeditation

19. The defendant committed the offence alone. Yet, from the tools that he had brought along with him it is clear that he had planned the commission of the offence.

20. I have seen the copper stripe that was recovered. It is about 1.6 meter in length, 4 cm in width and it is agreed that it weighs about 1.5 kg. The other missing copper stripe is of similar weight and dimension.

21. From the photographs, the part where the copper stripe was cut is some distance from the floor. To cut off this length of stripes required considerable effort on the part of the burglar.

22. Based on these facts, I find that the defendant must have a very clear idea and objective when he entered the building, which was to cut and steal the stripes. The burglary was clearly premeditated.

23. Based on the circumstances of the burglary, I find that an appropriate starting point is that of 2 years and 9 months’ imprisonment.

Aggravating factors

24. At paragraph 11 of the summary of facts, the court is informed that the stolen copper stripes were the grounding wires connected to the lightning conductor erected on the top of the building, which is there to protect the building from the damaging effects of lightning strikes. Without the copper stripes, should lightning strike the conductor, the electric current would not be able to be routed harmlessly to ground and will substantially increase the risk of fire or electrocution.

25. The copper stripe that was cut off can be seen from the photographs (photo 8) as part of a continuous segment bolted to the side of another metallic structure. It is not just a small stripe found lying on the floor. The defendant must have known the purpose and significance of this stripe, and that this kind of copper stripes exists in all tall buildings that require a lightning conductor setup. The consequences of damaging this setup can be dire. I find this an aggravating factor.

26. Another aggravating factor is the defendant’s criminal record. This is the defendant’s fourth conviction on a count of burglary. His previous convictions for burglary was in May 2012. In addition to burglaries, the defendant has been convicted previously for 10 counts of theft over the years, the latest being also in May 2012.

27. For these two aggravating factors, I will increase the sentence by 6 months, taking it up to 39 months’ imprisonment.

Mitigating factor

28. I find that the only mitigating factor is the defendant’s guilty plea.

29. Granting the defendant the usual one-third discount for his guilty plea, he is sentenced to 2 years and 2 months’ imprisonment.