HKSAR v. RAI KAMAL AND ANOTHER

DCCC136/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 136 OF 2012

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Reasons for Sentence

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1.  Defendants, you each pleaded guilty to a single offence of joint burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap.210.

2.  You each admitted the brief facts and I convicted you.

3.  The facts were as follows. 

4.  The building in question is located at 26 Whampoa Street, Hung Hom, Kowloon.  It is a residential building consisting of 25 flats. As of 12 December 2011, Richfield Realty Limited had acquired 17 of the 25 flats with a view to redeveloping the building.  The 3rd floor which had been purchased by Richfield was sub-divided into five units.  The entrance leading to the five units had been blocked by an unsecured wooden door which had a hole where the main lock used to be situated.  All five of the units were unoccupied.

5.  At about 1350 hours on 12 December last, PC10198, PW2, and Acting Sergeant 58903, PW3, were conducting a patrol in plain clothes inside the building.  Reaching the 3rd floor, the officers heard a noise emanating from the closed door leading to the units A to E. PW2 looked through the hole in the wooden door and saw you both there.  You were facing Unit B.  You, D1, were holding a crowbar and you used it to prise open the gate whilst you, D2, pulled open the iron gate.  PW2 tried to push open the wooden door but it was blocked by an object which he later found to be a wooden chair.  He applied greater force and successfully pushed open the wooden door where he saw you, D1, holding the crowbar and you, D2, walk away to Flat C, which was unsecured.  The iron gate of Flat B had been prised open and there were marks of prising on the wooden door but that was still closed.

6.  PW2 and PW3 intercepted both of you inside Flat C.  You, D2, were still holding the crowbar and you were instructed to place it on the floor.  PC4850, PW4, and WPC9648 were summoned to render assistance. PW4 searched you, D2, and found a screwdriver inside your pocket.  PW2 and PW4 then arrested and cautioned you, D1, and you, D2, for the offences of burglary.

7.  The manager of Richfield confirmed that nothing had been stolen but that the cost of repair to the iron gate of Flat B was $500.

8.  At the material time you each entered the 3rd floor of the building as trespassers intending to steal from there.

9.  D1, you admitted to nine previous convictions, six of which involved dishonesty, and you, D2, admitted to four, three of which involved dishonesty.

10.  Mr Choy entered mitigation on your behalf, D1. He told me that you are 34 years of age, single, secondary educated, and working as a construction worker earning $500 a day.  You had come to Hong Kong in 1997 from Nepal.  Your family in Hong Kong comprise your parents and two younger siblings but you have little contact with them.

11.  Mr Choy then cited the case of HKSAR v Chau Man Ying, CACC439/2011.  That case is strikingly similar to the present case involving as it does the burglary of a vacant building which was awaiting redevelopment.  There were some discrepancies between the two facts.  In that case, goods of low value were actually taken and the defendant acted alone. The defendant was convicted after trial and sentenced to 2 years’ imprisonment.  I note that he is a man with many previous convictions. 

12.  The Deputy Judge imposed a sentence of 2 years, as I say.  The basis of that reduced sentence was that the block was vacant, the theft opportunistic and the goods not of high value that were taken.  The Court of Appeal felt that this case could well have been heard in the Magistrates’ Court and they reduced the sentence to allow the defendant’s immediate release, which meant that he had served somewhere in the order of 12 months.

13.  Mr Lam then entered mitigation on behalf of you, D2.  He told me that you are 38 years of age, Hong Kong born, married with one son.  You had been working as a waiter in a restaurant earning $9,000 a month prior to arrest.  Although your record is not of the best, your last conviction was in 2007.  He stressed that in this case you had pleaded guilty at the very earliest opportunity, the crowbar used in the burglary had been carried by D1 and you had brought the pliers along.

14.  Mr Lam told me that the company Richfield was famous for buying up old units, and once they owned the whole building, would then redevelop it. 

15.  He too adopted the authority of Chau Man Ying.

16.  I turn now to the sentence.

17.  This is clearly a very different situation from the usual domestic burglary.  As you have no doubt been advised, that normally involves a starting point of 3 years’ immediate imprisonment. 

18.  I do echo the words of the Court of Appeal in Chau Man Ying when saying that properly and sensibly this case could have been heard by the Magistrates’ Court.  As I have said, the facts of the present case are strikingly similar.  There are some points of difference, however. 

19.  In the present case, whilst the 3rd floor was clearly vacant and derelict, there were other flats in the premises which were not so vacant.  This was not an opportunistic burglary, you came along prepared with a crowbar and pliers, and it involved the two of you acting together. However, one point of mitigation is that nothing was actually taken.  Such damage as occurred was of a relatively minor nature.  As I said, this is a very different situation from the usual domestic burglary. 

20.  Bearing in mind the differences between the present case and the authority, I take a starting point of 21 months’ imprisonment, reduced to 14 for your plea of guilty.  You will go to prison for 14 months.