HKSAR v. WONG SON IP

DCCC 653/2024

[2025] HKDC 708

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 653 OF 2024

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REASONS FOR SENTENCE

1.  The D pleaded guilty to 2 charges of burglary.

Summary of facts

2.  The location of both charges was in the same place, that was 8/F, Man Lok House, Tai Hang West Estate.

(1)  In charge 1 – the stolen property was a 32 meter long copper strip (valued at $12,160);

(2)  In charge 2 – the stolen property was a 22 meter long copper strip (valued at $8,360).

Circumstances of the arrest

3.  On 8/4/2024, at about 2:05 pm, the police were on patrol, saw the D on a wooden ladder and held onto the copper strips connected the ceiling. He was further observed to be wearing a pair of gloves and sorting out the copper strips. When the defendant was intercepted, there was a bag beside the him, of which it contained a handsaw, a clipper, a plastic cover, a screwdriver and a saw.

4.  Under caution, the D said admitted that on two occasion, that was on the 4^th April (charge 1)  and on the day of arrest (charge 2 – 6^th April), he removed the copper strips for selling as he was in need of money.

5.  The design of the Tai Hang West Estate was of an open nature, which allowed access to the common area of the estate.

Criminal record

6.  Since 2002 to 2018, the D has 9 court appearances with 12 criminal convictions.

7.  None of them is related to the present offences, they are in the categories of drugs offences, theft, one record of trafficking dangerous drugs and possession of offensive weapon.

Mitigation

8.  The defendant is 40 years old. He is married, but separated from his wife. The D is now in a relationship with another woman and they have 2 children (2 and 3 years old). Since his girlfriend is also a drug addict, the two children are placed in the same foster family for care.

9.  The D’s mother who is 70 years old suffering from cancer.

10.  The D was previously a construction worker, but has been unemployed for a year prior to his arrest. He committed the present offence due to financial hardship.

Sentence

11.  In the case of R v Wong Man Cr App 372 of 1992 and R v Chan Yui-man Cr App 36 of 1988 of which had laid down guideline for sentence for non-domestic and domestic burglary. The respective starting point are 2 ½ and 3 years.

12.  In the present case, the two burglary took place in a common area that was the corridor of a residential building. The guideline of the domestic burglary should apply.

13.  As there was no evidence to suggest that the D intended to enter any part of the domestic unit, a lower starting point for domestic burglary sentence should be adopted[1].

14.  However, there is another factor in consideration of the starting whether the government housing units were vacant or not. If yes, then further reduction of the starting point may apply[2].

15.  The Prosecution said that all the tenants in the building have been given notice to evict from the units before April 2024 for the purpose of re-development.

16.  In reality, all the tenants on the 8/F had moved out except the tenant in Unit 801.

17.  The Defence said that in the mind of the D when he entered into this building, he believed that it was a vacant building.

18.  The offences took place in early April. While the defendant lived in a nearby housing estate in Shek Kip Mei. The D must have known that the tenants would have moved out by then. As one can see from the photos, the metal sliding gates to the units were sealed by Notice which suggested no entry to those units. Anyone decided to enter to those units needs to break the Notice.

19.  In such circumstances, it is clear to me that anyone walked into the corridor of the building would believe that it was a vacant property for re-development.

20.  I accepted that the case of Lee Chiu Yui should apply in the present case as paragraph 11 of the judgement said that “it is irrelevant whether the premise are domestic or commercial”, a lower starting point should be adopted. 

21.  As such, I take 2 years as the starting point for both charges.

22.  Aggravating factor :-

I first deal with charge 1, his last conviction before committing the offence in charge 1 was some 6 years ago. As such, it can be said that the defendant managed to stay clean for some 6 years. I will not enhance the sentence in both charges because of his previous conviction.

23.  However, according to the case of HKSAR v Cheung Wai Kai CACC 338/2007 that there are aggravating factor in both charges :-

(1)  Charge 1: There are previous criminal record;

(2)  Charge 2: -

(a)  The D was equipped with tools to commit the offence on 6^th April 2024. He targets at highly valuable properties that was the copper strip to be resell;

(b)  Previous conviction record.

24.  As such, the starting point for charge 1 should be enhanced by 3 months and charge 2 should be enhanced by 6 months.

25.  The sentence for both charges :-

(1)  Chare 1: is aggregate to 2 years 3 months. After 1/3 discount, it comes down to 18 months.

(2)  Charge 2: is aggregate to 2 years 6 months. After 1/3 discount, it comes down to 20 months.

Further deduction of charge 1

26.  I accepted that it was the defendant’s voluntary confession to the police and he pleaded guilty to the charge, which showed his genuine remorse in this matter, as such charge 1 is given further deduction of 2 months, the final sentence of charge 1 is 16 months. (18-2 months)  (HKSAR v Hui Chi Tong CACC 414/2007 paragraph 25 refers)

Totality

27.  In the case of HKSAR v Lau Hiu Man [2013] 2 HKLRD 862, the appellant re-entering the same unit to steal. In the judgement from the Court of Appeal, it said that “the 2 burglaries were separate and distinct. The second offence added to the culpability of the first and it was not improper to regard this as justifying an additional period of imprisonment for the first burglary.”

28.  In such circumstances, in arriving a just and proper sentence to reflect the culpability of the offences, I order 6 months from charge 1 to be served consecutively to charge 2.

29.  The total sentence of the charges are as follows :-

(1)  Charge 1 – 16 months;

(2)  Charge 2 – 20 months.

(3)  6 months from charge 1 to run consecutively to charge 2, it becomes 26 months.

30.  The defendant is ordered to serve a period of 26 months imprisonment.