HKSAR v. YAU TIK MAN

DCCC 738/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 738 OF 2015

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REASONS FOR SENTENCE

1.  The defendant pleaded guilty to 2 charges of "Attempted Burglary" (Charges 1 and 2) and 1 charge of "Burglary" (Charge 3).

2.  He tried to burgle or burgled 3 different residential units located at Cheung Shue Tan Village within 16 days.

Summary of Facts

Charge 1

3.  Mr. CHENG (PW1) resided at the address particularized in Charge 1, which is the Ground Floor of a 3-storey village house ("House 1").

4.  About 5:20 pm on 19 June 2015, PW1 was working in his bedroom.  He heard some scratching noise coming from the living room, and went there to take a look.  He saw a man in his garden trying to prize open a window.  PW1 shouted at the man.  The man climbed over the garden wall and fled.  PW1 alerted the Police.  He confirmed nothing was stolen.

Charge 2

5.  Mr. KONG (PW2) resided at the address particularized in Charge 2, which is a 3-storey village house ("House 2").

6.  About midnight on 30 June 2015, PW2 went to sleep in the bedroom on the 2^nd Floor of House 2.  About 2:40 am, PW2 heard some hitting noise, and went to the balcony to take a look.  He saw the defendant on the 1^st Floor balcony.  PW2 shouted at the defendant and went to tell his wife.  When he looked down from his balcony again, the defendant was climbing over the metal gate and fleeing towards the road.  PW2 alerted the Police.  He found a prizing mark on the Ground Floor window frame, but nothing was stolen from House 2.

Charge 3

7.  Mr. Burd (PW3) resided at the address particularized in Charge 3, which is a 3-storey village house ("House 3").  Mr. PANG (PW4) was PW3's neighbour.

8.  About 11:00 am on 5 July 2015, PW3 left home with his daughter.  About 2:20 pm, PW4 saw a man walking towards House 3.  The man, who was wearing a pair of white gloves, tried to open the main gate of House 3.  He later walked to the side and jumped into House 3.  PW4 called the Police.

9.  About 3:10 pm, PW3 came home.  He found the window near the kitchen sink having been opened.  There was a prizing mark on the kitchen window.  PW3's bedroom and the maid's bedroom had been ransacked.  Properties (as particularized in Charge 3) were found missing from both rooms.

Admissions

10.  The defendant was arrested at his residence located at the same village on 7 July 2015.  Under caution, he admitted having burgled House 3 2 days ago because he was in need of money.  He took the Police to a tin hut near his home to retrieve a 10-inch long screwdriver, which he had used to burgle House 3.

11.  In his video recorded interviews, the defendant admitted having sold the camera stolen from House 3.  He had spent the proceeds and the stolen cash on heroin.  He also admitted that he had tried to burgle Houses 1 and 2 respectively on 19 and 30 June 2015.  Someone shouted at him on both occasions, so he fled.

12.  On 11 July 2015, PW2 identified the defendant in an identification parade as the man who tried to burgle House 2.  On the other hand, PWs 1 and 4 were unable to make any identification.

Mitigation & Sentence

13. The defendant is 35 and single. He has 9 conviction records, which include 6 "Burglary" offences, 1 "Attempted Burglary" offence and 2 "Theft" offences. Defence counsel Mr. TSE informed me that at the time of the present offences, the defendant was a drug addict; he was in need of money to feed his habit.

14. In mitigation, Mr. TSE submitted that in relation to Charges 1 and 3, there is no evidence against the defendant except his own admissions. Furthermore, the offences were committed in an unsophisticated manner; only a pair of gloves and 1 screwdriver were used.

15. Regarding the defendant's background, Mr. TSE submitted that the defendant began his drug abuse in 1996 when he was in F.3. He has worked as an air-conditioning technician and is a licensed welder. Upon release from prison, the defendant plans to move to Shenzhen to live with his mother and to work at construction sites. A letter written by the defendant was placed before me; its contents are duly noted.

16. Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. If his drug habit was the cause of committing the present offences, the defendant has no one but himself to blame. Being a released prisoner, he must have known how to seek help.

17. The normal starting point for domestic burglary is 3 years' imprisonment. The defendant committed or tried to commit 3 burglaries in the same village within 16 days is an aggravating factor[1], needless to say he is a repeated offender of "Burglary". The manner in which he committed the present offences might have been primitive; however, on each occasion, someone (either an occupant of the targeted premises or a neighbour) saw him in action. To some extent, that person must have been alarmed by his presence, especially the occupants.

18. Mr. TSE has done all he could for the defendant. I have no choice but to increase the starting point in order to give a deterrent effect. I adopt a starting point of 3.5 years' imprisonment for each charge[2]. A one-third discount is given for the guilty plea, reducing the sentence to 28 months. Apart from this, I see no other mitigating factors which warrant any further reduction. The sentence for each charge is 28 months' imprisonment.

19. Bearing in mind the totality principle, I consider a global starting point of 4.5 years to be appropriate for all 3 charges. With the guilty pleas, the overall sentence becomes 36 months. I note that the evidence against the defendant for Charges 1 and 3 came primarily from his admissions, I will grant him an additional discount of 2 months[3], reducing the overall sentence to 34 months. Hence, I make the following order :-

(i) 3 months in Charge 2 consecutive to Charge 1; and

(ii) 3 months in Charge 3 consecutive to Charges 1 and 2.

Thus, the total prison term shall be 34 months.