HKSAR v. WONG WAI MING AND ANOTHER

DCCC118/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 118 OF 2009

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Reasons for Sentence

1.  Both defendants pleaded guilty to a charge of burglary.  The joint offence was committed in the early hours of the morning of 29 December at Shun Wo Medicines Company on Pei Ho Street.  The property stolen there included birds’ nests, shark fins, abalone, deer tails and various other items, the total value of which was $164,720.

2.  The 2nd charge, although it is the first in time, was preferred only against the 2nd defendant, and that offence occurred on 8 September 2008.  Again, it was at a pharmacy, this time in Argyle Street, Mongkok, and bottles of ginseng and cash to a total value of $140,000 were stolen.

3.  Dealing with the facts of the case admitted by the defendants, I will deal with the facts of the case which was first in time, the 2nd charge.  The facts in that case were that the premises were secured on the evening of 7 September.  When the proprietor returned the following morning, he discovered that three padlocks securing the gates were missing and the gates had been prised.  The property referred to in the charge is missing and CCTV showed that the premises had been entered by two men between 6.52 am and 7.10 am on the morning of 8 September.

4.  And the facts of the 1st charge are very similar.  The proprietor locked the premises on the evening of 28 September and, when he returned the following day, he found that the padlock securing the gate had been damaged and that it was in fact missing and the property, the subject of the charge, was missing.

5.  The following afternoon, the police located the 1st defendant at Fa Yuen Street.  He was searched, and several packets of property, which had been stolen in the 1st charge, were recovered inside a bag which he was carrying.  He admitted committing the offence.  That same evening, the officers went to a flat at the Sau Mau Ping Estate and arrested the 2nd defendant.

6.  He also admitted being involved in the burglaries.  He said his friend had given him cash and Chinese medicine and he had given some of the medicines to another friend who lived on the 20th floor of his building.  A search of the flat showed there was cash in the sum of $2,510 on top of a cupboard.  A pair of gloves, six screwdrivers, a torch, a pair of pliers and a crowbar were found.  He admitted involvement in both burglaries.

7.  D1 has 10 previous court appearances, six appearances for burglary offences, or six counts of burglary on his record, and was last released from prison in June 2007, having served 28 months for an offence of burglary.

8.  The 2nd defendant has 37 court appearances, mainly drug related.  He has appeared for an offence of robbery in 1980 and burglary in 1978.

9.  In relation to the 1st defendant, it was urged upon me in mitigation that the defendant who is 47 years of age has had severe financial problems.  He has an 80 year-old mother who is bedridden and who is looked after largely by one of his sisters.  He has a wife and 16 year-old child on the mainland.  I am told that when he was released from prison in 2007, he had looked for work but found it very difficult to find work last year and he met some of his old friends and started to get back into trouble.  He was educated only to Primary 5 level, which obviously did not help with getting work.

10.  The court has received a letter from his sister, which confirms that his 80 year-old mother is bedridden and says that the defendant has been very good to the family, when in employment, has made financial contributions.  The letter also confirms that the defendant has been very positively looking for work but, because of his educational standards, had found work very difficult to come by.

11.  The 2nd defendant is 60 years of age and, again, has very little education.  He found it, again, very difficult to get work and has been dependent on comprehensive social security payments.  Counsel on his behalf pointed out that, notwithstanding his numerous previous convictions, not many were for burglary-related offences and those were some considerable time ago.

12.  It was urged upon me in respect of each of the defendants that they were cooperative with the police and have pleaded guilty at an early stage.  Property worth about $60,000 has been recovered.

13.  Now, both defendants have appalling records albeit that the 2nd defendant’s record is mainly for drug-related offences.  The burglaries committed were not random.  There was a degree of planning required for each of them.  The premises concerned were similar type premises, and valuable property was stolen, and the total value of the property stolen comes to $300,000.  In each case, determined efforts were made to enter the premises.  Padlocks were broken, and the gates prised open.

14.  Looking at the nature of these offences, it seems to me that the appropriate starting point for offences of this gravity are sentences of three years’ imprisonment for each of the offences.  Both defendants must be given credit for their guilty pleas, so each of those sentences will be reduced by one-third.  So the sentence for each of the offences is two years’ imprisonment.

15.  In relation to the 2nd defendant, there are two offences, so I am required to consider the question of totality.  Having considered the question of totality, I take the view that six months on Charge 2 should run consecutive to the sentence on Charge 1.  So the 1st defendant will go to prison for two years and the 2nd defendant two and a half years.