HKSAR v. NGUYEN VAN DONG AND ANOTHER

DCCC 957/2020

[2021] HKDC 596

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 957 OF 2020

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REASONS FOR SENTENCE

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1.  D1 and D2 both pleaded guilty before me to one joint charge of Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. Particulars are that they, on 4 August 2020, in Hong Kong, together with another person unknown, having entered as trespassers part of a building known as Ground Floor, No 312 Ki Lung Street, Sham Shui Po, Kowloon, stole therein cash of $2,500 Hong Kong currency, 12 packets and 68 boxes of surgical masks, one trolley and one CCTV camera.

Facts admitted by D1 and D2

2.  The subject premises is a grocery store (“the Store”) situated on the Ground Floor of 312 Ki Lung Street.  It was open for business from 0830 to 2100 hours daily.  When it closed on 3 August 2020, the Store’s front and rear doors were locked.  When the owner returned at 0830 hours the next day ie 4 August 2020, he found the two iron gates at the rear were prized open.  He found the following:-

(a)  Cash of $2,500 stolen from the cash register;

(b)  12 packets and 68 boxes of surgical masks (valued at around $6,186) were stolen from the storage room;

(c)  One trolley (valued at around $98) was stolen from the storage room; and

(d)  One CCTV camera (valued at $500) was stolen near the main entrance.

3.  CCTV of nearby shops captured the movement of D1 and D2, and a person unknown, on 4 August 2020 as follows:-

(a)  At around 0356 hours, the three persons were standing in the rear lane behind the Store;

(b)  At around 0359 hours, the three of them walked past the rear lane: D1 was holding a carton box; D2 was holding a bag and the person unknown was pulling a trolley with a bag placed on top of it; and

(c)  At around 0401 hours, the person unknown entered a building at 310 Ki Lung Street whereas D1 and D2 entered a building at 308 Ki Lung Street.

4.  On 4 August 2020, at 1510 hours, D1 was at the rooftop of 308 Ki Lung Street (where he was living) taking out several boxes of surgical masks from a red-white-blue bag.  A red plastic bag and a trolley were placed beside him. Police intercepted him.  Upon search, police found:-

(a)  in the red-white-blue bag, 54 boxes of masks,

(b)  in the red bag, 12 packets of masks; and

(c)  in the trolley, 7 boxes of masks.

5.  Under caution, D1 said he stole something downstairs.  Under arrest for burglary and further caution, D1 said he did steal something.  The owner of the Store confirmed that all the masks and the trolley belonged to him.

6.  On the same day, at 1610 hours, police followed D2 from the Ground Floor of 308 Ki Lung Street to Yu Chau Street where he was stopped.  D2 was arrested for burglary.  Under caution, D2 admitted helping D1 to move some stuff to the rooftop.

7.  On 5 August 2020, D1 under cautioned VRI admitted that at about 0400 or 0500 hours on 4 August 2020, D1 together with D2 and another friend moved a trolley, a carton box and a few bags containing masks from a rear lane back to his home at the rooftop.

8.  On 5 August 2020, D2 under cautioned VRI admitted that at about 0300 or 0400 hours he met D1 at Ki Lung Street and at D1’s request, he helped D1 move some stuff from a rear lane to the rooftop using a trolley.

9.  D1 and D2 now admit that they, together with the person unknown, entered the Store as trespassers and stole therein; that the three of them prized open the 2 iron gates at the rear entrance; that the three of them stole all the items particularized in the charge.

10.  All of the stolen items were recovered except the cash and the CCTV camera.

Criminal records

11.  D1 has 22 previous convictions one of which was for burglary (1993) and 10 others of which were for theft or attempted theft.  For his last theft conviction, he was sentenced in September 2019 for a 5 months’ term.

12.  D2 has 26 previous convictions of which 6 were for burglary or attempted burglary (last burglary in 2008).  He was last sentenced in July 2020 to 4 weeks’ prison term suspended for 12 months for Breach of condition of stay.

Antecedents

13.  D1 is aged 55 (54 at the time of the offence), educated to P6 level, had worked as a renovation worker but was unemployed at the time of arrest.  He was last discharged from prison on 9 January 2020.  D1 was living at the rooftop of 308 Ki Lung Street.

14.  D2 is aged 58 (57 at the time of the offence), educated to P3 level, had worked as a renovation worker and was a casual renovation worker at the time of arrest.  He was last discharged from prison in 2016.  He was living in public housing in Shamshuipo.

Mitigation

D1

15.  Ms Elizabeth Herbert of counsel assigned by the Director of Legal Aid mitigated on behalf of D1.  The following is a summary of her mitigation submissions.

16.  D1 was born in Vietnam and came to Hong Kong in 1988 and became a HKID card holder.  He is divorced with 2 adult children.  D1 was a casual renovation and construction worker.  D1 committed the offence due to financial reasons. He is remorseful and pleaded guilty in good time and asks for 1/3 discount.

17.  Ms Herbert referred to the case of HKSAR v Sim Ka Wing, CACC 450/2000, and submitted that that proper starting point for cases of burglary of non-domestic premises with no aggravating or mitigating features is 2 ½ years’ imprisonment; that such burglaries will involve a measure of planning and a degree of premeditation is already built into this starting point.

18.  It is acknowledged that this case has two aggravating features namely, two or more persons acting together, and D1’s bad previous records for theft.

D2

19.  Mr Hanif Mughal of counsel assigned by the Director of Legal Aid mitigated on behalf of D2.  The following is a summary of his mitigation submissions.

20.  D2 was born in Vietnam and came to Hong Kong in 1988 and became a HKID card holder.  He is divorced with 2 adult children.  D2 had worked as a renovation/decoration worker earning $1,600 per day.  D2 has previous similar conviction record.  D2 pleaded guilty and is entitled to 1/3 discount.  The starting point in a case of burglary of non-domestic premises is 2 ½ years’ imprisonment: R v Wong Ming (1993) 1 HKC 80.  This conventional starting point relates to burglaries with no aggravating or mitigating features.

21.  Mr Mughal also referred to HKSAR v Sim Ka Wing, CACC 450/2000, and repeated the same point that had been made on behalf of D1.

22.  Mr Mughal submitted that the value of all the items taken was $9,284 which is not a particularly high value; and the overall majority of the non-cash items were recovered.  D2 asks for leniency in any enhancement the court would adopt.

Sentence

23.  I have considered all the mitigation submissions.  I take into account the overall majority of the non-cash portion of the stolen property has been recovered.

24.  There appears to be little evidence of pre-planning or premeditation in the commission of this burglary.  However, there is the clear aggravating factor common to both defendants of more than one person acting in concert.

25.  D1 has a bad record of Theft Ordinance convictions and he committed the present offence only months after his last discharge from prison for theft. This is an additional aggravating factor peculiar to him.

26.  As against D2, given his last similar conviction occurred in 2008, I will not treat him as a persistent offender for the purpose of this sentencing exercise.

27.  In respect of D1, I shall adopt a starting point of 2 years 9 months. In respect of D2, I shall adopt a starting point of 2 years 6 months.

28.  Both of them pleaded guilty in good time and they shall be entitled to the 1/3 discount.  There are no other mitigating factors that would further reduce the sentence.

29.  As for D2, he had an operative suspended sentence of 4 weeks’ prison term at the time of the present offence.  Given D2 committed the present offence only one month into the operative period of the suspension, I can see no reason why it should not be fully activated.  Having taken into account the principle of totality, I am satisfied that it is just to make this 4 weeks’ sentence run wholly consecutively to his present sentence.

(Defendants, please stand)

30.  D1 will go to prison for 22 months.

31.  D2 will go to prison for 20 months for the present case.  I order that his suspended sentence of 4 weeks’ imprisonment be fully activated and it is to run wholly consecutively to his present sentence, making an aggregate sentence of 20 months and 4 weeks’ imprisonment.