HKSAR v. YU KIN SAN

DCCC 976/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 976 OF 2016

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of attempted burglary and one charge of theft.

FACTS

Charge 1

2.  In summary, the offence took place in a residential building in Shumshuipo.  Mr Wong and Mr Yu’s motherwere neighbors living in the flats opposite one another on the same floor.  Prior to 17 May 2016, Mr Yu’s mother left her flat (“the Flat”) after properly securing it.  A wooden door and a metal gate were installed outside the Flat.  At about 1 am on 17 May 2016, Mr Wong heard knocking noises against the metal gate of the Flat, which went on for about 4 minutes. Mr Wong opened his front door to investigate and saw that the metal gate of the Flat was prized open and two males were fleeing from the scene.  The case was reported and Mr Yu was also contacted.  Mr Yu noticed that there were prize marks on both the lock of the metal gate and the wooden door of the Flat.  Two fingerprints were lifted from the metal gate and the wooden door, and found to match with those of the defendant. 

Charge 2

3.  The offence was committed in Shamshuipo at a fixed pitch hawker stall run by Mr Lo selling prepaid SIM cards.  At about 9 pm on 30 June 2016, Mr Lo secured the cabinets of the stall before leaving.  His property including HK$10,000 and 1300 sim cards (“the Stolen Property”) was at the time kept inside the cabinets.  At about 7 am on 1 July 2016, Mr Lo viewed the CCTV of the stall via his mobile phone and noticed that the cabinets were opened.  He returned to the stall and found the padlocks on the cabinets were broken and the Stolen Property was missing.  CCTV footage showed that, at about 5:11 am on 1 July 2016, the defendant  used tools to break the locks on the cabinets and took the Stolen Property from therein.  The defendant  spent about 1 hour at the stall before leaving.  During this time, he was seen looking directly at the CCTV camera and making several phone calls. A fingerprint was lifted from the cabinet and found to match with that of the defendant.

4.  On 22 July 2016, the defendant was arrested.  The police seized the then items worn and carried by the defendant, as they appeared to be similar to those worn and carried by him as seen in the CCTV footage.  The items seized were a silver ring, a belt, a shoulder bag, a pair of slippers, a mobile phone, a shirt and a pair of shorts.

5.  At subsequent video recorded interviews, the defendant under caution stated, inter alia, that: (i) he forgot what he was doing at the time of the incident in Charge 1; (ii) he was playing mobile phone games with a friend in Mongkok market at the time of the incident in Charge 2 and (iii) none of the items seized from him belonged to him. 

6.  TIC records showed that the defendant was in Hong Kong when both offences took place.

CRIMINAL RECORD

7.  The defendant  had previously been brought before the Magistrates’ Courts on 3 occasions involving altogether 6 offences.  Five of them were theft offences involving bicycles and phone card.  

MITIGATION

8.  The defendant, aged 46, was born in the Mainland and received education up to primary 5 in Mainland.  He is divorced and has a son, aged 17, who is a student.  He had worked as a construction site worker before and, when in employment, earned about $15,000 per month.  Prior to the arrest, he worked as a cleaner.  He has to take care of his son and mother and financially support his family. 

9.  He wants to set a good example to his son.  He joins the activities held by the church regularly and, through the help of the church, hopes to reform himself and avoid association with bad peers who would incite him to re-offend.  The defendant  is not a member of triad society and has no drug habit. 

10.  When he reached the Flat referred to in Charge 1, he rang the door bell and knocked on the door to ensure that no one was inside the Flat.  After making sure that no one was there, he started to use a screw driver to open the door.  He was detected by the occupier of the neighboring flat immediately. He and the other person then fled without opening the iron gate. 

11.  Mr Yip said no damage was done to the property and no loss was suffered by the occupier of the Flat.  No one was threatened, harmed or injured.  The defendant  was not a professional burglar as he wore no gloves and his fingerprints were detected.  For Charge 2, only little damage was done to the hawker’s property.

12.  The defendant committed the two offences out of greed and for money to meet the payment of expenses to his mother and son.  He is very remorseful and begs for a chance of rehabilitation. 

13.  Mr Yip also referred the court to the starting points adopted in HKSAR v Lau Pang, CACC 252/2004, in relation to an offence of burglary and HKSAR v Cho Ka Yeung, DCCC 77/2015, in relation to one of the theft offences in that case involving theft from a boutique stall in a shopping mall.

SENTENCE

14.  In passing sentence, I have carefully considered everything that has been said by Mr Yip on behalf of the defendant.

Charge 1

15.  The proper starting point for burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years imprisonment: see AG v Lui Kam Chi [1993] 1 HKC 215; HKSAR v Lau Pang [2004] 3 HKLRD 565.  I am satisfied that no distinction is to be drawn by the fact that this was an attempt.

16.  The starting point can be adjusted upwards if there are aggravating circumstances such as; (1) the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous conviction of similar nature, and (6) the offender commits multiple offences: see HKSAR v Cheng Wai Kai, CACC 338-339/2007.

17.  The defendant has previous convictions of theft and the last one was in 2015.  As the sentences imposed on him were by way of either a fine or a fairly short term of imprisonment, I do not consider his theft convictions as an aggravating factor in relation to the present burglary offence.  On the other hand, the fact that the defendant committed the offence jointly with another person is clearly an aggravating feature. However, I accept that he may not be a professional burglar as suggested by Mr Yip. Taking into account there was no loss of or damage to the property except prize marks, no one was hurt threatened or injured and this was the first time he committed a burglary offence, I am prepared to deal with him leniently and adopt the starting point of 3 years without making any upwards adjustment.  I find that the only mitigating factor is the defendant’s guilty plea and therefore sentence the defendant to 2 years imprisonment.

Charge 2

18.  This is a theft from a fixed pitch hawker.  The defendant committed this offence at about 5:11 am.  Although only the padlocks were broken, the defendant did use tools to break the locks and the value of the stolen property was substantial.  The facts of the present offence are, in my view, more serious than those involved in the theft offence referred to by Mr Yip in Cho Ka Yeung.  Also taking into account his theft convictions, I adopt a starting point of 7 1/2 months imprisonment.  The only mitigating factor is his guilty plea.  I sentence the defendant to 5 months’ imprisonment.

19.  Both charges are separate incidents having no connection with each other.  Applying the totality principle, I find it appropriate to order the sentence of Charge 2 to run consecutively to Charge 1 and the total sentence is 2 years and 5 months imprisonment.