HKSAR v. HUYNH TRUNG-DUNG

DCCC822/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 822 OF 2009

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Reasons for Sentence

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1.  Defendant, you pleaded guilty to a single offence of burglary, contrary to sections 11(1)(a) and (4) of the Theft Ordinance, Cap.210.

2.  You admitted the brief facts and I convicted you.

3.  Briefly, the facts were as follows. At around 3 am on 19 June last year you entered the offices of the Wing Lee Metal Company at No.579 Tsing Chuen Wai, Lam Tei, New Territories. The burglar alarm was activated and the police were called. At around 3.15 am police officers attended and searched the site. You were found beneath a lorry wearing a pair of labour’s gloves and a face mask. You were searched but nothing suspicious was found on you.

4.  Under arrest and caution, you admitted entering the office intending to steal. Finding nothing, you then went in to look for metal in the site.

5.  In a subsequent interview under caution, you made admissions. You said, inter alia, that you had been in need of money, you went to the site and searched the office but you found nothing. You found gloves within the site and you used these to facilitate your climb into the office. You gained access to the office by means of an unsecured window. You ransacked the office but found nothing worth stealing. Realizing the burglar alarm had been triggered, you left the office and you hid yourself beneath the lorry.

6.  Nothing was in fact missing though you had ransacked the office. At the time that you entered the site, you were a trespasser and you entered with intent to steal from there.

7.  You admitted to 23 previous convictions from 17 court appearances, 12 of the convictions related to dishonesty, 4 being burglaries.

8.  Mr Lui, the prosecutor, referred me to the last conviction which was an offence of burglary and my brother judge took an enhanced starting point of 33 months based upon your recidivistic character.

9.  On your behalf Miss Chan entered mitigation. She told me that you are 45 years of age, unemployed at the moment, single and educated to Form 4. You came to Hong Kong as a refugee in 1986 from Vietnam and now enjoy the status of right of abode.

10.  On your behalf Miss Chan submitted this was an opportunist burglary and not a planned one. She said that you resided close to these premises. On the night of the incident you had been to a barbecue and were passing the site when you noticed a gap in the gate. Therefore, you used this gap to enter to look for goods to steal. She said that you had taken with you none of the normal tools or aids for burglary. The facts support the fact that gloves were found within the site. Nothing in fact was taken.

11.  Miss Chan produced to me the case of HKSAR v Cheung To Ming, Cri App No.406 of 2005. However, in my opinion, that case is of no assistance to me, the facts are very different from the present situation.

12.  I turn now to the sentence. While I acknowledge the principle that a man is not punished twice for what he has done in the past, it has to be said that you have an appalling record especially for crimes involving dishonesty. On the last occasion my colleague and my brother judge had rightly designated you a recidivist.

13.  I do however accept that this offence was not pre-planned. I do accept that you had not equipped yourself to go up to commit such an offence and you did act upon seeing the gap and an opportunity. I also accept that nothing was taken but that is purely fortuitous. If there had been cash or other valuables, you would have taken them. I do note that from the moment you were discovered, you were very co-operative with the police.

14.  Therefore, weighing all the facts and your appalling record, I do find a starting point in excess of the normal 30 months is justified. However, given the mitigating factors I have mentioned, I do not find it necessary to go beyond that which my brother judge used on the last occasion. Therefore, I do take a starting point of some 33 months, reduced to 22 months for your plea of guilty.

15.  You will go to prison for 22 months.