HKSAR v. YE YUTING

DCCC 1283/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1283 OF 2010

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Reasons for Sentence

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Charge and facts

1.  The Defendant pleads guilty to burglary.  He was a two-way permit holder allowed to remain in Hong Kong for 7 days.  On the fifth day of his visit, he was found to possess an electric sanding machine in his bag on a Sunday when coming out of a residential unit on the 31^st floor of a public housing block.  The said machine, valued at $350, was the property of the contractor inside the unit.  No construction work was to be done on Sunday.  The unit was apparently under construction and not ready for occupancy. 

2.  The iron grille had been left open by the contractor with the key perching on the top of the iron grille frame for convenience’s sake but without regard to security.  He groped up the frame and got the key to enter the unit.

Personal background and mitigation put forward

3.  He is 34 years old.  He worked as a mechanic in Guangdong, China.  He is married and has a daughter.  His wife is a housewife running a farm as a meager income supplement.  He came to Hong Kong on and off to collect junk for repair or shape-up for resale in China.  He has a clear record.

4.  His counsel submits it was an opportunistic burglary although the door was not left open.  He relies on the case of HKSAR v Law Tin Yam CACC 258/2010 where the door in question was closed but unlocked.  The applicant entered and stole some cigarettes.  The Court of Appeal thought fit not to apply the usual starting point.  The starting point was revised to 15 months.

5.  He accepts that our present case bears more serious facts that Law Tin Yam but the planning, if any, is minimal.  He asks for a slightly higher starting point compared to that case.

6.  Another case in support of a lower starting point is HKSAR v Yeung Kwok-sang CACC 4/2006.  The argument is that where the unit had been residential previously but due to the fact of renovation was made non-residential, the usual starting point for residential burglary should not be adopted.  The starting point of 2 ½ years was affirmed.

Sentencing this Defendant

7.  I accept that our present case should attract a lower starting point on the grounds that firstly it was not an opportunistic but a scantily planned burglary, and secondly the unit was not residential at the time of the offence.  I take an exceptional starting point of 2 years.  I reduce it to 16 months because of the plea of guilty.  This is his sentence.