HKSAR v. KWOK SHU YAU

DCCC 982/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 982 OF 2012

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Burglary". The burgled premises are a mental cabinet placed in a staircase of a building.

Summary of Facts

2.  Mr. PANG (PW1) resides in a 5-storey building situated at No.146 Tai Nan Street, Mongkok ("the Building").  He is the proprietor of a metalware shop.  He had placed a metal cabinet in the staircase leading to the roof of the Building; hundreds of metal padlocks were stored inside.  The cabinet was secured by 2 padlocks. PW1 last checked the cabinet at 7:00 pm on 4 September 2012; it was intact and undamaged.

3.  About 2:10 am on 5 September 2012, PC 7784 and PC 58793, who were patrolling in the vicinity of Tai Nan Street, saw the defendant walking slowly wearing a rucksack and holding a recycle bag with both hands.  They stopped him for enquiries.  Upon search, they found 132 brand new padlocks (still in their original packaging) in the defendant's rucksack and 33 similar brand new padlocks in his recycle bag.  Tools fit for committing burglary such as spanner, metal clamps, screwdrivers and labour gloves were also found in the defendant's rucksack and recycle bag.

4.  Under caution, the defendant admitted that he stole the padlocks from the roof of a building situated at Tai Nan Street.  He also admitted that since he did not have money, when he walked by the Building, he used the metal clamp in his recycle bag to cut open a metal door and took away the padlocks [inside the cabinet].  PC 58793 later confirmed that the location described by the defendant is the Building.

5.  Subsequently, PW1 identified the 165 padlocks found on the defendant as his properties and confirmed that they were stored in the metal cabinet.  The value of the padlocks is about HK$4,200 in total.

Mitigation & Sentence

6. The defendant is now 50, divorced and lives alone. He has 11 conviction records involving 2 offences of Attempted Burglary and 1 offence of Theft; the remaining offences are mainly drug-related.

7. Defence lawyer Mr. CHAN submitted that the defendant was released from prison in 2010 and has taken up different jobs since. The defendant became unemployed in June 2012. He has tried to look for jobs but was unsuccessful. Mr. CHAN highlighted that this case is not a typical burglary since PW1's storage cabinet was placed in the staircase. It was unlikely for the defendant to have any confrontation with the occupiers of the Building when he committed the offence. Furthermore, the total value of the padlocks is relatively low.

8. 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. Unemployment is certainly not an excuse either. In my view, no one would die of hunger in Hong Kong nowadays. There is sufficient social welfare protection for the poor and the weak to meet their basic needs; they just have to let others help them.

9. I will adopt the normal starting point of 2.5 years' imprisonment for non-domestic burglary. A one-third discount is given for the guilty plea, reducing the sentence to 20 months. Apart from this, I see no other mitigating factors which warrant any further reduction. Hence, the sentence I impose is 20 months' imprisonment. Although the defendant's 2 previous convictions of Attempted Burglary are both dated 1996, he is a repeated offender for the purpose of this case. I have already displayed my leniency by not increasing the starting point and by treating the burgled premises as non-domestic.