HKSAR v. BUDI YANTO AND ANOTHER

DCCC 167/2021

[2021] HKDC 1293

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 167 OF 2021

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REASONS FOR SENTENCE

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1.  D1 and D2 both pleaded guilty to a joint charge of "Burglary".

Summary of Facts

2.  The burgled premises are the 1^st Floor of a 2-storey container house situated at the address particularized in the charge ("the House").  Each container is a residential unit with an iron gate with lock.  Mr. Wu (PW1)  was the tenant of the 1^st Floor of the House ("the Flat"), whereas D1 was residing on the Ground Floor.

3.  About 1:00 p.m. on 3 September 2020, PW1 left the Flat.  He returned around 7:00 p.m. and found a plastic bottle containing coins missing.  He also found some coins in another plastic bottle missing.  An approximate sum of $1,100 in coins was stolen.  The Police was alerted.

4.  Enquiry with Mr. Tsim, a neighbour of PW1, revealed that he saw D1 together with 2 males appearing outside the House around 3:00 p.m. that day.  They had a ladder with them.

5.  D1 was arrested at his home (Ground Floor of the House)  on the same day.  He claimed that he only acted as a lookout, whereas the dumb boy entered the Flat and took away the money.  D1 was later given $100.  The dumb boy described by D1 was placed on the wanted list.

6.  D2 was arrested on 27 October 2020.  He remained silent under caution as he was unable to speak.

Admissions

7.  In his video recorded interviews, D1 admitted that he has known the dumb boy (i.e. D2)  for 10 years.  In the afternoon on 3 September 2020, D2 was with D1 in D1's home.  D2 fetched a ladder from some place nearby.  D2 entered the Flat by climbing up the ladder.  He took 2 bottles of coins and threw a bottle of coins to D1.  D1 was acting as a lookout; he later took away $100.

8.  In his video recorded interviews, D2, through a sign language interpreter, admitted that he was in D1's home in the afternoon on 3 September 2020.  D1 fetched a ladder from some place nearby and asked D2 to enter the Flat by climbing up the ladder.  D2 did so reluctantly.  He entered the Flat through a window and took away a bottle of coins.  He then gave it to D1.

9.  D2's fingerprints were found on the outer surface of a plastic bottle in the Flat.

Mitigation

D1

10.  He is almost 40 and has 1 "Theft" conviction in 2016 for which he was fined $7,000.  His counsel Ms. Yeung informed me that D1 is single and came to Hong Kong with his mother from Indonesia around 1988.  He studied up to F.2 in Hong Kong. 

11.  In mitigation, Ms. Yeung submitted that D1 was a casual delivery worker earning about $14,000 per month. He was residing with his girlfriend on the Ground Floor of the House.  Ms. Yeung stressed that in the present case, no resident was alarmed; no property was damaged; and hardly any breaking in was involved (D2 climbed into the Flat through an unlocked window).  Ms. Yeung described the present burglary as "opportunistic" and "walk-in type".  She invited the court to adopt a lower starting point[1].

D2

12.  He is 33 and has 2 conviction records, which involved a total of 3 theft-related offences.  His counsel Ms. Cheng informed me that D2 was

born in Indonesia. He was confirmed deaf and dumb at the age of 6. D2 moved to Hong Kong with his family in 2000. He received special education in Hong Kong for 9 years. He completed F.5 in 2009.

13.  In mitigation, Ms. Cheng submitted that D2 started to work upon leaving school.  Unfortunately, his earning capacity has all along been limited, despite his willingness to work for long hours and to take up moonlighting jobs.  D2's father deserted the family long time ago and D2's mother has become emotionally unstable since.  In 2015, D2 decided to move away from his family and rented a small room of his own.  He receives a small sum of monthly disability allowance in addition to his own earnings.  Due to the pandemic, D2's income dropped sharply.  Thus, in August 2020, he began to rent a bed space in D1's container.  On 3 September 2020, D1 demanded money from D2.  Even after receiving $2,000 from D2 as rent, D1 still instructed D2 to climb up the ladder to enter the Flat.  D2 complied reluctantly and took a bottle of coins.  He gave the bottle to D1 and left after completing the task.  D2 received no reward for doing so.

Sentence

14. The normal starting point for domestic burglary is 3 years' imprisonment. Although the window of the Flat was unlocked, it did not in any way serve as an invitation for D1 and D2 to go in to steal. It is clearly an aggravating factor that D1 and D2 acted in concert. I note that in their respective video recorded interviews, both D1 and D2 alleged the other side being the instigator of the crime. For the purpose of sentencing, I need not determine who asked whom to do what. They might have played different roles, but they acted as a joint enterprise and are equally culpable. There is no need to distinguish their roles or to apportion their culpability.

15. Whilst the offence was committed by D1 and D2 as a joint enterprise, I accept that there is a slight element of "sneak in theft". The cash stolen is not a significant sum, but certainly of a higher value than a pack of lemon tea or cigarettes. Hence, I adopt a starting point of 18 months' imprisonment for both defendants. Bearing in mind the aggravating factor mentioned above, I would increase the starting point to 21 months. With their timely guilty pleas, the sentence is reduced to 14 months each. I sentence D1 and D2 each to 14 months' imprisonment.