HKSAR v. TANG LAP SAN

DCCC 401/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 401 OF 2010

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Reasons for Sentence

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Charge

1.  The Defendant is convicted after trial of a burglary which took place on 16 March 2010.  He entered as a trespasser part of a building known as Room C, 4^th Floor, No. 2N Shek Kip Mei Street, Sham Shui Po, Kowloon, Hong Kong, with intent to steal therein.

Facts found by this court

2.  The address was 4^th Floor, No. 2N Shek Kip Mei Street (“Flat”). There were 4 suites, Rooms A – D.  Rooms A and B were near the doorway of the Flat.  Rooms C and D were away from the doorway of the Flat.  There was an L-shaped corridor connecting all 4 rooms.  If one enters the Flat and walks along this corridor, one will pass in sequence Room A, Room B, the corner of this corridor, Room D and finally reach Room C.  Room C is, in other words, at the end of this corridor. 

3.  Mr. Au was the owner of the Flat.  On 15 March 2010, he instructed a property agent, Madam Hau, to hire a workman to fix the doors of the two front rooms, i.e. Rooms A and B.  The 2 rooms would be rented out.  

4.  At 5:15 p.m. on 16 March 2010, Madam Hau instructed the Defendant accordingly and gave her the keys to open the street gate, the iron gate and the wooden door of the Flat.  The Defendant’s fee would be $1,500.      

5.  PW1 was the tenant of Room C.  He worked as a cook at night time.  After duty at 2 a.m. on 16 March 2010, he returned home.  He locked his room door by pressing down the button of the door knob.  At 5 p.m., he was taking a rest when he heard several knocks on his door and someone asking, “Anyone inside?” for three to four times.  He did not answer.  There was some sound from the door and the door opened.  A man (the Defendant) came inside for about two steps.  The Defendant saw him and went out at once.  

6.  He did not know the Defendant.  He chased after the Defendant to ask what he (the Defendant) was up to.  The reply was that he was entering to borrow a pencil to mark the doors so that he could fix the doors of the two rooms as instructed by the property agent.  The Defendant apologized and asked him for a chance.  As far as PW1 could tell, there was no one else in the Flat apart from the Defendant and himself.  He told the Defendant that he was going to report the matter to the police.  Before the police arrived, the Defendant had remained in the two rooms to fix the doors. 

7.  It took the police 10 minutes, from being instructed by the police console to their actual arrival, to reach the Flat as there was no lift.  PW1 told them what had happened.  The Defendant repeated the same explanation as he had done to PW1.  Upon the police’s request, he demonstrated how to open PW1’s locked door with a blue plastic card.  The police arrested and cautioned the Defendant for attempted burglary.   

8.  The Defendant’s explanation was that he had been instructed by the property agent to fix the doors of Rooms A and B.  He was given the 3 keys to open the street gate, the iron gate and the wooden door of the Flat respectively.  He entered PW1’s room to borrow a pencil.    

Defendant’s personal background and mitigation

9.  The Defendant is 36 years of age.  He was born and educated up to secondary level in Mainland China.  He came to Hong Kong to work as a bartender and then a decorator.  He operates a decoration company.  He is said to be a responsible husband, father and son.  His father, his wife and relatives are in court.  He has 2 young children, i.e. a girl aged 10 and a boy aged 6.  He has one record for shoplifting in 2006. 

10.  His counsel submits that it was an exceptional case that the sentencing guidelines should not apply.  Firstly it was not a case that he broke into the Flat.  He was given the keys to the Flat.  He was not given any keys to open the locked doors of Rooms A and B by the property agent.  He had the liberty to open or break open the locks.  The property agent did not require him to return the old locks.  He used the plastic card to open Rooms A and B.  Secondly, there was no property lost in Room C.  Thirdly, he was apologetic to PW1 for entering Room C.  Fourthly, there was no premeditation.     

Sentencing guidelines for burglary

11.  In R v CHAN Yui Man, Cr App 36/1988, the Court of Appeal held that in burglary of domestic premises, 3 years was about the proper starting point for a first offender of full age.  This was followed in R v Chan Wing Ching Cr App 100/1991, R v Luk Wai Kit Cr App 99/1992, and R v Wong Man Cr App 372/1992.

Sentencing this Defendant

12.  But for the trust of the property agent, he would not have obtained the keys to the building and the Flat.  Strictly speaking, it was not a breach of trust because even the property agent herself did not have the authority to grant him access to Room C.  The fact that he was not given any keys to Rooms A and B is irrelevant to what he was going to do in Room C.  The consent for him to enter the Flat or Rooms A and B was only limited to his fixing the doors of Rooms A and B.  His breaking into Room C took him outside the scope of consent. 

13.  There was no property lost in Room C because upon entry, he had no opportunity to steal as PW1 had already got up.  I agree that his entry into Room C was opportunistic and would warrant a departure from the guidelines.  I take a starting point of 1½ years’ imprisonment.  There is no mitigating factor.  This is his sentence.