HKSAR v. HO CHUN YU (also known as HO CHUN YIN)

DCCC 406/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 406 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant appeared before me and pleaded guilty to a single charge of “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

THE FACTS

2.  Madam Lo (“PW1”) and her mother Madam Leung (“PW2”) live in Yat Man House, Ho Man Tin Estate, Hung Hom, Kowloon (“the Flat”).  They have known Wong Kwok Leung (“Wong”) for many years, who was a friend of PW1’s late father.

3.  At about 0930 hours on 11 July 2016, PW2 left the Flat to go to work, PW1 was still in the Flat when she left.

4.  At about 1700 hours on the same day, PW1 left the Flat leaving Wong who was visiting in the Flat.  Since Wong has been a family friend for over 10 years, PW1 was comfortable to let Wong continue to stay in the Flat by himself.

5.  PW1 returned to the Flat at about 2250 hours on the same day. She found the wooden door prized open with damage and the Flat had been ransacked.  She reported to the police and notified PW2 and Wong.

6.  At about 2345 hours PW2 returned to the Flat.  She found a safe and a suitcase missing from her bedroom. The safe contained one pair of gold earrings (valued at $1,300), four pairs of diamond ear-rings (valued at $20,000), cash of RMB2,000 and one Samsung mobile phone (valued at $3,400);

7.  The safe had been attached to the wall beneath a dressing table in PW2’s bedroom.

8.  Upon initial enquiry by the Police, Wong alleged that he had left the Flat at around 1800 hours on 11 July 2016, the Flat was intact when he left.

9.  Footages of the CCTV at the rear entrance of Yat Man House captured Wong knocking on the rear door at around 2217 hours on 11 July 2016.  A man opened the rear door from inside, then Wong and another man who was pulling a small suitcase with wheels entered through the rear entrance.  At about 2238 hours on the same day, Wong and a man pulling a heavy small suitcase with wheels came out of the rear entrance.

10.  Wong was arrested and defendant’s mobile number surfaced during investigation.

11.  Record check against the defendant’s mobile phone provided two addresses.  Wong was taken to one of the address, ie a village house in Tai Lin Pai Road, Kwai Chung, where a private car was parked at the roadside, and was identified by Wong as having been used in the burglary.  A card with defendant’s mobile number and “Mr Ho” written on it was displayed on the windscreen.

12.  Defendant was put on the wanted list and watch list since 14 July 2016.

13.  On 28 February 2017, defendant was intercepted by police while he was driving along Wan Po Road in Sai Kung area.  Defendant’s wanted status surfaced during the investigation.  The defendant was arrested for ‘Burglary’.

14.  Under caution during a video-recorded interview, defendant admitted, inter alia, the followings:-

(i) on 11 July 2016 Wong called and asked defendant to help with moving some items;

(ii) on the same day at around 2240 hours, defendant took the car lent to him by Lam and arrived at Ho Man Tin Estate to join Wong and another man (WP1, later known as “Ah Hill”);

(iii) the car was parked outside the construction site at Sheung Shing Street in Ho Man Tin area;

(iv) Wong gave a black plastic bag containing a crowbar to defendant;

(v) Wong, defendant and WP1 went to the Flat;

(vi) defendant knew the Flat belonged to Wong’s godmother;

(vii) the iron gate and the wooden door of the Flat were already unlocked when they reached the Flat;

(viii) defendant used the crowbar given to him by Wong to remove the safe from the wall;

(ix) they used a black cloth to wrap the safe and put it into a suitcase;

(x) they escaped via the rear staircase;

(xi) they took the safe back to defendant’s car by taking a taxi;

(xii) defendant left the safe near a roadside in Kwai Ching area;

(xiii) when defendant learnt that Wong had given a statement to police, he became frightened;

(xiv) defendant collected the safe and took it to the seaside in Tai Kok Tsui by taxi and threw it into the sea.

15.  Police conducted a search in the sea area where defendant allegedly threw the safe with nil result.

16.  Wong was prosecuted for the offence of burglary for what he did in this case in DCCC 864/2016.  He pleaded guilty to the offence.  Ah Hill remains at large and is wanted by the police.

CRIMINAL RECORD AND BACKGROUND OF THE DEFENDANT

17.  The defendant is aged 34.   In the past, he had appeared in the courts in Hong Kong on five occasions.  He has three previous convictions of “Possession of dangerous drugs.” His last conviction was in 2013 for a case of “Going equipped for stealing” and “Possessing a false instrument” for which he was sentenced to 18 months’ imprisonment. 

18.  The defendant was a plumbing and electrical artisan earning $20,000 per month before the arrest. He is married but now separated with his wife.  They have two young children. The family lives with the defendant’s aged parents.  He paid $10,000 to his wife to maintain her and the 2 children. He also gave $3,000 to his parents. The defendant’s father is suffering from dementia and his mother has osteoporosis and has difficulty in walking.

MITIGATION

19.  Mr Ng, solicitor for the defendant, mitigated that the defendant knew Wong a few months before he committed the offence. On the date of the offence, Wong called the defendant and asked him to the scene to help him to move some things. At that time, the defendant was not aware that Wong was about to commit an offence.  However, he later learnt that Wong and another person were going to burgle the premises. He did not turn down the offer but went ahead with the others to steal the safe and committed the offence. He committed the  crime out of stupidity and has not obtained any benefit.

20.  Mr Ng stressed the fact that the defendant was very remorseful and pleaded guilty in the first available opportunity and thereby saving court’s time.  There is no evidence to show that the offence was pre-meditated by the defendant.

21.  Mr Ng acknowledged that the starting point for a domestic burglary is 3 years’ imprisonment for a first offender of full age: HKSAR v Lau Pang [2004] 3 HKLRD565. 

22.  Mr Ng also submitted that there is no aggravating factor present in this case.  He pointed out that this is a single offence and it was unplanned by the defendant.   No heavy equipment was used and nobody was injured during the incident. 

SENTENCING CONSIDERATIONS

23.  According to the Court of Appeal’s guideline, for domestic burglary offence, the starting point for a defendant who is of full age and of a clear record would be 3 years. 

24.  The defendant claimed that he had no knowledge about the burglary when he was first approached by Wong. He thought that he was there to assist Wong in moving the things.  I accept that the offence was not carefully planned and he has no knowledge in the first place.  I accept that Wong being the mastermind of this offence. However, the defendant decided not to withdraw from the crime even after he knew the full facts. He could blame nobody.

25.  I adopt three years as the starting point in the present case. However, I find that there is one aggravating factor in this charge, which is the defendant committed the crime with two accomplices, Wong and Ah Hill. They used a crowbar to remove the safe attached to the wall in the bedroom.  I find that the starting point needs to be increased to take into account this aggravating factor: see HKSAR v Cheung Wai Kai CACC 338/2007 at §15.  I do so by increasing it by 3 months to 3 years and 3 months. With the guilty plea, the sentence is reduced to 2 years and 2 months. I sentence the defendant to 26 months’ imprisonment.

26.  Undoubtedly, the defendant’s family will suffer, but this consequence is something which he should have considered before he embarked on committed the offence.