HKSAR v. WUN SHU-FAI (also known as WAN SHU-FAI)

DCCC 559/2020

[2021] HKDC 80

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 559 OF 2020

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

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

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

Reasons for Sentence

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

1.  The defendant has pleaded guilty to a single charge of burglary. The burglary took place at the premises of the ground floor of Pei Ho Street in Sham Shui Po.

2.  At the time of the burglary, the premises was rented by the first prosecution witness and renovation works were being carried out by the second prosecution witness at that location.  So the premises was not resided in and it was a workspace for renovation at the time of the burglary. 

3.  At the time in question, the premises was left locked.  There was a window by the rear entrance.  When PW1 returned the following day after locking the premises, he found that the tools that he had at the location for the renovation works had been taken.  In total, the total value of those renovation tools was $10,100, and the tools themselves are listed in the Agreed Facts.  The defendant agrees that. 

4.  The CCTV footage of the location showed the defendant, in the early hours of the morning of 9 March at about 6 o’clock in the morning coming up to the rear entrance and climbing through the window which appears to have been left open or unlocked.  The defendant then exited by the rear entrance using a trolley which he loaded with the renovation tools. 

5.  Defendant was arrested on 11 March.  He immediately admitted that he had committed the burglaries.  He said he had done it for money to get food.  He knew it was wrong and he climbed into the shop. 

6.  A further video-recorded interview provided more detail.  He said he had found the window by the side was unlocked, climbed into the window to gain entry to the premises, then taken the tools from the toolbox, loaded them onto this trolley and left.  He had sold the items in Apliu Street and he was able to show the police where an electric screwdriver valued at $2,000 could be recovered.  So one of the items was recovered from the burglary. 

7.  The defendant is now aged 51.  He has two children.  He had been living on CSSA and was living alone at the time of his arrest, works on a casual basis in transportation or whatever work, he could find.  He has been out of work because of the restrictions in Hong Kong. His mitigation was the premises was left open and he committed an opportunistic crime.  There was no equipment used and there was no premeditation, just a crime of opportunity. 

8.  The defendant has a criminal record, a fairly lengthy criminal record, a total of 25 previous appearances in court, many convictions for theft and one aggravating factor in this case is a conviction for burglary in 2018 for which he received a sentence of 33 months’ imprisonment. 

9.  The approach to sentencing in these cases is governed by guideline sentencing.  The normal guideline sentence for burglary, the starting point to be adopted in the case of a residential burglary for a person of clear record who pleads not guilty would be 3 years’ imprisonment. In respect of a commercial or non-residential premises, the starting point for sentence for a person who pleads not guilty after trial with clear record would be 30 months’ imprisonment. 

10.  In this case, the normal starting point for sentence that would be adopted is that for a non-residential premises.  The premises were not resided in and were a workspace at the time because renovation work was taking place in respect of those premises.  

11.  The court has been referred to the case of HKSAR v Cheung To Ming [2006] 2 HKC 416 which dealt with an opportunistic burglar as it was described, and it was said that an opportunistic burglar is entitled to receive a lesser sentence than a conventional burglar.  In that case, the facts of the case dealt with what was seen as being a walk-in burglary into a nature reserve education centre at Mai Po where the main door was open and some noodles were stolen.  The starting point for sentence adopted in that case was 18 months’ imprisonment. 

12.  As I said, a starting point of 18 months was appropriate to the case and then the term was reduced by one‑third for the plea of guilty.  In that case, it was said the only safe basis for dealing with the appellant was to regard him as having been in the same position as a “sneak thief” who was able to walk into the centre without breaking into it, and in that case an 18 months’ starting point would be appropriate.

13.  This case differs somewhat from Cheung To Ming in that the value of the items stolen was considerably more; it is $10,000-odd here.  This is a premises not at Mai Po but actually in the city centre.  Also to be set against those factors is the fact that the defendant was co-operative as well. 

14.  I consider that this case is more serious than the one in Cheung To Ming but is not so serious that the court must adopt the conventional starting point.  I will consider the starting point I would adopt on the facts of this case where the defendant is effectively a walk-in burglary because the window was left open.  The starting point I would adopt is one of 24 months’ imprisonment. 

15.  The defendant has also a recent conviction for this offence which is an aggravating factor.  For that reason, I will increase that starting point by 3 months to 27 months’ imprisonment. 

16.  Taking into account the defendant’s mitigation, I will reduce that sentence by one-third, leaving a final sentence of 18 months’ imprisonment, and that is the sentence I will adopt.