HKSAR v. VU QUANG AN

DCCC 562/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 562 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.  On 24 May 2015, the defendant entered by pushing open the iron gate of a building in Sham Shui Po.  This building in Sham Shui Po had been repossessed by the Urban Renewal Authority for redevelopment and there are notices to that effect on the front gate and in the building on door premises.  There are a few similar buildings in Sham Shui Po like this and have become targets for people looking for anything of value inside these buildings. 

3.  On that day the defendant had no money to buy anything to eat, so decided at about 5 pm to enter the building.  He was seen by a police officer on the 8th floor corridor.   From the photographs, the 8th floor is an open corridor.  He was seen cutting some disused copper pipes off the wall for their resale value.  The police saw six pipes that he had already cut off on the floor.   Later, a further 14 pipes were found in the defendant’s rucksack.

4.  The total value of these 20 pipes has been estimated at $330.

5.  Under caution, the defendant admitted to the police that he stole the pipes.  He admitted he entered the building by pushing open the gate and had taken with him a pair of pliers to cut the pipes off the wall.

6.  The defendant is not a man with a clear record. He has 11 previous convictions from four court appearances.  He has no previous burglary conviction nor any convictions for offences of dishonesty.  His convictions comprise mainly of immigration related offences. 

7.  The defendant is a Vietnamese national and has been subject to a deportation order.  He was last deported in 2008.  Now he is in Hong Kong as an asylum seeker and is holding a Form 8 issued by the Immigration Department.  His recognizance paper is dated January 2015. 

8.  The defendant is 44 years old and single. Because of his status as an asylum seeker, he is unable to work in Hong Kong. He is therefore entitled to some financial assistance and rental assistance.  But he says he cannot be bothered with the process of application and has not claimed any assistance.  He sleeps under a flyover in Sham Shui Po near the building that he targeted. 

9.  I have been reminded that the usual sentence for burglary of domestic premises is 3 years where there are no mitigating or aggravating factors that exist. 

10.  Prosecution has also submitted an authority, HKSAR v Sandagdorj Altankhuyag CACC 45/2013 where the Court of Appeal point out it may in some cases be an aggravating factor when an asylum seeker commits certain offences in Hong Kong and abuses the hospitality extended to him as a torture claimant here.   Here I am not sure that observation applies like it clearly did in that authority. 

11.  The defendant’s best mitigation is his plea today.  Mr Chan has said all he can say on the defendant’s behalf.  He submits there are certain factors the court should take into account, in particular, that the building was a repossessed building.  It looked run down and was almost derelict.  The defendant did not break in, he walked in and only had one pair of pliers.  The defendant did not enter any premises, he was in the corridor of the 8th floor.  And the pipes that he cut were disused and not of great value.  The facts describe an opportunistic burglary.  I accept all these factors are relevant.

12.  Mr Chan also submitted two authorities including HKSAR v Lee Chiu Yui CACC 24/2014 as well as HKSAR v Dauz Paul Benedick Joanai HCMA 152/2014.  That Court of Appeal authority refers to two other cases where burglars entered vacated or almost vacated residential buildings awaiting development.  The normal starting point was clearly reduced to reflect that and other similar facts as are seen here.

13.  I therefore take into account the facts in this case, mitigation put forward and the defendant’s background.  I also consider that it was not a planned burglary carried out in an occupied residential flat.

14.  I can differentiate this case to such a burglary that would merit a starting point of at least 3 years.  The defendant here entered a repossessed building without any difficulty and stood in an open corridor cutting pipes off the wall.  It is a less serious scenario despite it still technically being a burglary. 

15.  Defendant, please stand up.

16.  I therefore take a starting point of 18 months’ imprisonment.  I reduce that by one-third for the defendant’s plea today. After that discount is applied, the defendant is sentenced to 12 months’ imprisonment.  Do you understand that sentence?

DEFENDANT: Understand.