HKSAR v. YEUNG SAI FAI

DCCC 713/2016 & 123/2017 (Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 713 OF 2016 AND 123 OF 2017

-------------------------

-------------------------

-----------------------------------------

REASONS FOR SENTENCE

-----------------------------------------

1.  These are the reasons for sentence.

Charge

2.  The 4^th defendant was jointly charged with the 1^st defendant with a count of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Chapter 210.

3.  The 1^st defendant pleaded guilty in December 2016 and her sentence was dealt with by another judge.  On 26 April 2017, the 4^th defendant pleaded guilty to the said charge.

Facts

4.  The facts to which the 4^th defendant admitted show that at the material times, Mr Ng (PW1), aged 57, and his family including his son (PW2), aged 19 and daughter (PW3), aged 15 were residing at Room 602, Ming Yu House, Kin Ming Estate, Tseung Kwan O, New Territories, Hong Kong (the premises).  At around 10 am on 19 April 2016, PW2 was the last person to leave the premises.  He checked that it was secured prior to leaving.  At around 6.25 pm, PW3 returned to the premises and found that the iron grille was opened and the metal bars were bent.  The wooden front door was also ajar and had marks of being prised open.  Upon entering the premises, it was found that the following items were missing:-

(a) one iPad, estimated value $3,694;

(b) six metal ornaments;

(c) one black Rolex watch;

(d) two gold silver Rolex watches;

(e) two gold necklaces with pendants;

(f) three Louis Vuitton bags;

(g) one Gucci bag;

(h) one wrist chain;

(i) cash $7,000;

(j) three Hong Kong passports of PW1 to PW3; and

(k) two birth certificates of PW2 and PW3.

5.  Police investigation revealed that one of the gold silver Rolex watches had been pawned.  The watch was recovered from the pawnshop.  It was the only stolen property recovered.

6.  Mr Chan for the prosecution submitted to the court that the total value of the missing properties, excluding the Rolex watch which was worth $25,000, was estimated to be around $207,194.

7.  Forensic examinations revealed that two fingerprints lifted from the outside and from the inside of the bent metal bar of the iron grille of the premises matched that of the 4^th defendant.  The 4^th defendant was arrested on 10 October 2016 and he remained silent under caution.

8.  Police conducted two video-recorded interviews with the 4^th defendant and he admitted the following:-

(a) On 19 April 2016, he and his friend, another male named “Ah Sai”, were at an arcade centre when Ah Sai received a call. At the request of Ah Sai, they took a taxi together to Kin Ming Estate in Tseung Kwan O.

(b) There, a friend of Ah Sai, a female, later known to be D1, Wong Shuk Kam, greeted them and opened the rear door of Ming Yu House and allowed them to enter. This was around 10 am.

(c) Together they went to 1^st defendant’s residence which is the adjacent flat to the premises.

(d) After chatting for about half an hour, the 1^st defendant said that her neighbours (PW1 to PW3) often scolded her, so she would like to steal from their premises as revenge. The 4^th defendant and Ah Sai agreed to help.

(e) Ah Sai bent the metal bar of the premises iron grille using a wooden stick provided by the 1^st defendant. This created an opening for the 4^th defendant to insert his arm through the iron grille and unlock it from inside. Ah Sai then kicked open the premises’ wooden door.

(f) The 4^th defendant opened and closed the iron grille with his hands, but he did not enter the premises, only Ah Sai entered the premises.

(g) The 4^th defendant stood in the corridor to keep watch on the elevators while Wong, that is the 1^st defendant, returned to her own flat. The 4^th defendant saw that the 1^st defendant was watching the building’s CCTV cameras while in her own flat.

(h) After about 10 minutes, Ah Sai emerged from the premises and asked that they all went to Room 3720 of the same building to inspect the stolen properties.

(i) The 4^th defendant claimed not to have taken anything from the stolen properties at the time.

(j) At about 11 am that same day, the 4^th defendant and Ah Sai walked down the stairs from Room 3720 to the ground floor to take a taxi to Tin Shui Wai.

(k) Ah Sai carried the remaining stolen properties along the way. Afterwards, the 4^th defendant took a taxi to return home to Tuen Mun.

(l) Ah Sai gave one Louis Vuitton bag and one Gucci bag to the 4^th defendant as remuneration for his participation. However, because the 4^th defendant had no use for such bags, he subsequently discarded them in a rubbish bin in Tuen Mun.

(m) The 4^th defendant recognised the watch as one of the stolen properties.

(n) Watching the Ming Yu House CCTV, the 4^th defendant recognised himself, the 1^st defendant and Ah Sai entering and exiting the building at the material times.

9.  The CCTV footages of the building of the premises show that at around 11.05 am on 19 April 2016, D1, the 1^st defendant, opened the building’s back door and allowed the 4^th defendant and another male, both empty-handed, into the building.  At about 12.21 pm on the same day, those two persons exited the building via the same back door but now were seen holding bags.

10.  At the material times, the 4^th defendant together with the 1^st defendant and others, jointly entered the premises as trespassers and stole properties therein.

Previous criminal convictions

11.  The defendant was brought to court on four occasions with a total of five previous criminal convictions including an offence of robbery in 2002, an offence of theft in 2011, an offence of possession of a dangerous drug in 2012, and offences of using an identity card relating to another person and failing to produce proof of identity on demand in 2014.

Antecedent

12.  The antecedent statement was read into the record by Mr Chan.  In gist, it was said that the defendant was born in Hong Kong.  He was married in 2010 and divorced in 2014.  His siblings and his mother live in China.

Mitigation

13.  In mitigation, Mr Yeung, representing the 4^th defendant, submitted that the defendant, aged 32, married again and has a daughter who is now 3 months old.  He received education in China and moved to Hong Kong in 2001.  At the time of the arrest, he was a renovation worker earning $9,500 a month.  His father passed away and his mother, together with his older brother and sisters, are living in China.

14.  Mr Yeung further submitted that the defendant would work hard after release from prison for the present offence as he wanted to take care of his family. 

15.  In respect of the present offence, the 4^th defendant went to burgle the premises at the request of his friend Ah Sai.  His motive to commit the present offence was not for money.  It was simply to help the 1^st defendant who said that she was always scolded by the victim family.  After the commission of the offence, he was only given an LV bag and a Gucci bag. Besides, Mr Yeung described that the burglary was not well planned.  He indicated that the starting point for sentence for domestic burglary is 3 years’ imprisonment.

Reasons for sentence

16.  I have carefully considered everything said on behalf of the 4^th defendant by Mr Yeung.  This is a domestic burglary, the correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment (see AG v Lui Kam Chiu [1993] HKC 215).  In light of the sentencing guideline, I adopt a starting point of 3 years, or 36 months’ imprisonment.

Aggravating feature

17.  In HKSAR v Cheng Wai Kai, CACC 338/2007 (unreported), a case concerning burglary in non-domestic premises, the Court of Appeal said, at paragraph 15, that:-

“The starting point can be adjusted upwards if there are aggravating circumstances, such as:

(i) The offence is carefully planned and skilfully executed involving the use of heavy instruments or equipment.

(ii) The offence is committed by two or more people.

(iii) The offence targets at substantial premises and involves substantial properties.

(iv) The offender is a professional burglar and not just an opportunist.

(v) The offender has previous convictions, particularly previous conviction of a similar nature.

(vi) The offender commits multiple offences. If the offences were committed in different premises against different victims and different dates, consecutive sentences should be imposed.”

18.  In the present case, I find that there is an aggravating feature i.e., the burglary was committed by a total of four persons, including the 4th defendant.  In light of the circumstances, I consider that the usual starting point should be adjusted upwards.  It should be enhanced by 3 months to 39 months’ imprisonment. 

19.  The defendant had indicated his plea of guilty to this charge at the plea day hearing in the District Court.  As such, he is entitled to a full one-third discount of sentence (see HKSAR v Ngo Van Nam [2016] 5 HKLRD 1).  The sentence is therefore reduced to 26 months’ imprisonment.

Sentence imposed on the 1^st defendant

20.  It is noted that the 1^st defendant received a sentence of 20 months’ imprisonment (see Reasons for Sentence in respect of D1 in DCCC 713/2016). However, the antecedent and mitigation put forward by the 4^th defendant are different from that of the 1^st defendant and this may need to be reflected in the sentence.  In this regard, I have considered HKSAR v Chow Tak Fuk, CACC 428/2004.

Conclusion

21.  Apart from the 4^th defendant’s guilty plea, there exists no other mitigating factor which will justify a reduction of sentence.

22.  The defendant is sentenced to 26 months’ imprisonment.