HKSAR v. TSANG LEUNG KWAN (also known as TSANG Kwan) AND ANOTHER

DCCC 921 & 1071/2017 (consolidated)

[2018] HKDC 685

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 921 & 1071 OF 2017 (consolidated)

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REASONS FOR SENTENCE

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1.  Each of the first and second defendants pleaded guilty to one count of “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210 (charges 1 and 2 respectively) and both of them pleaded guilty to one count of “Attempted burglary” contrary to section 11(1)(a) and (4) of the same Ordinance and section 159G of the Crimes Ordinance, Cap. 200 (charge 3). Upon the prosecution’s application, charge 2 as against the first defendant was left on court file and not to be proceeded with without the court’s leave.

Charge 1 (against the first defendant)

2.  “Cheap Beautiful Great Cheap Price Store” is situated at the address particularized in charge 1 (“Shop 1”).  It had only one entrance which was secured by a roller gate. 

3.  On 12 July 2017 at around 7:45pm, Mr Yip, owner of Shop 1, locked the roller gate and left the shop. 

4.  At the material times, police officers were conducting anti-crime operation and noticed the first defendant leaving his home at Wah Tong House, Yau Tong at 8:48pm.  He then took MTR to Ngau Tau Kok and went to Shop 1.  He sat outside Shop 1 and tampered with the roller gate.  After a while, he left and returned home at Yau Tong.

5.  At 11:18pm on the same day, the first defendant changed his clothes and left home and took MTR to Ngau Tau Kok again.  He put on a cap and went to Shop 1.  He sat outside Shop 1 and tampered with the roller gate.  After a while, he lifted the gate and entered Shop 1.

6.  He left Shop 1 shortly thereafter.  Then he was intercepted and arrested.  Upon search, 1 pair of labour gloves, 1 screwdriver, 1 cap, 1 disposable mask, 1 torch and cash of HK$2325.6 inside a red plastic bag were found.

7.  Mr Yip later arrived at Shop 1 and confirmed money in the sum of around HK$2,000 was missing.

8.  CCTV cameras of Wah Tong House and Ngau Tau Kok MTR captured some of the movement of the first defendant as observed by the police on 12 July 2017.  The clothes that the first defendant was seen wearing earlier was found at his home.

9.  In subsequent video-recorded interview, the first defendant admitted that he entered Shop 1 and stole the money out of greed.  He also admitted ownership of the mask, labour gloves, screwdriver and cap.

Charge 2 (against the second defendant)

10.  “Wing Chun Company” is a store selling dried seafood situated at the address particularized in charge 2 (“Shop 2”). There were 2 entrances to Shop 2.  The front entrance had a roller gate secured by a lock and a padlock.

11.  On 20 August 2017 at around 8:15pm, Ms Wong, person-in-charge of Shop 2, left the shop after locking the roller gate and the padlock.  At around 10am on 21 August 2017, she returned to Shop 2 and found the padlock missing and signs of ransacking.  Upon checking, she found 8 packs of fish maw, 6 boxes of bird’s nest, two boxes of cordyceps and cash of HK$1,600 missing.  The value of stolen goods is around HK$280,000.

12.  1 fingerprint and 1 palm print lifted from 2 glass jars that were used to contain the stolen goods were found to match with the left middle finger and left palm of the second defendant.

13.  One screwdriver and one disposable mask were found.  The mask contained DNA that matched with the second defendant’s DNA.

14.  CCTV camera captured the second defendant walking back and forth several times in the vicinity of Shop 2 between 1am and 3am on 21 August 2017.

15.  The clothes worn by the second defending as shown in the CCTV footage was found at his home.

16.  Under caution, the second defendant admitted that the first defendant asked him to do the burglary with him and all stolen goods had already been passed to the first defendant.

Charge 3 (against both defendants)

17.  “Cheong Kee Company” is a store selling dried seafood situated at the address particularized in charge 3 (“Shop 3”).  There was only 1 entrance to Shop 3 which had a roller gate secured by a lock with padlock.

18.  On 2 September 2017 at 5:30pm, Ms Wu, staff of Shop 3, locked the roller gate with the padlock and left Shop 3. 

19.  On 4 September 2017 at around 2:29am, police officers saw the first and second defendants outside Shop 3.  The first defendant tampered with the lock of the roller gate whilst the second defendant was looking around.

20.  The first defendant then walked to a construction site nearby and got a red umbrella from there.

21.  The first defendant walked to Shop 3 and made 2 more attempts to tamper with the lock of the roller gate but was unsuccessful.  He then took out a crowbar hidden inside the umbrella and made 5 more unsuccessful attempts to prize open the roller gate with the crowbar.  At the material time, the second defendant was standing around 100 metres from Shop 3 but kept looking towards Shop 3.  In between each unsuccessful attempt, the first defendant walked to meet the second defendant and talked to him.

22.  After the last unsuccessful attempt, the first defendant put the crowbar inside the red umbrella and put them back to the construction site. 

23.  CCTV camera captured the first defendant walking back and forth several times in the vicinity of Shop 3 between 2:25am and 3:55am.  CCTV camera also captured the second defendant inside a nearby 7-11 store at 3:22am.

24.  At 4:20am, both defendants were intercepted and arrested by the police.  Upon search, 1 disposable mask, 1 torch and 2 skeleton keys were found on the first defendant while 1 pair of gloves and 1 torch were found on the second defendant.

25.  The metal plate at the base of the roller gate was seized.  Upon examination, it was concluded that there could have been a contact such as though prying actions between the crowbar and the metal plate.

26.  Call records revealed that the second defendant had a number of phone calls with the first defendant daily on 21 August 2017 and in the next 2 days and he also had a number of phone calls with the first defendant daily in the 4 days before 4 September 2017.

27.  In subsequent video-recorded interview, the first defendant admitted that he planned to burgle Shop 3.  He asked the second defendant to help him move the stolen goods and would give some money to the second defendant if the burglary was successful. He brought along 2 skeleton keys but he could not unlock the roller gate with the skeleton keys.  He therefore used a crowbar which had been hidden near Shop 3 to prize the roller gate. 

28.  In subsequent video-recorded interview, the second defendant admitted that on 21 August 2017, the first defendant called him and asked him to burgle Shop 2. The first defendant was responsible for opening the roller gate while the second defendant was responsible for entering Shop 2 and moving the goods.  He took away 3-4 bottles of dried seafood in a bag and passed them to the first defendant.  On the next day, the first defendant told him that the goods had been sold and he received HK$9,000 from the first defendant.  On 2 September 2017, the first defendant called him requesting him to help move some stuff at Shop 3.  The first defendant asked the second defendant to wait at 7-11 while the first defendant opened the gate of Shop 3.  He knew the first defendant was going to enter Shop 3.  In between the first defendant’s attempts to prize open the roller gate, the first defendant told the second defendant that he “was unsuccessful”.  The second defendant believed the first defendant meant he could not prize open the roller gate. 

Mitigation

29.  The first defendant is aged 59, married and the wife is living in the Mainland.  He has 22 previous conviction records, 16 of those relate to dishonesty and 10 out of 16 relate to burglary.  He was last convicted of burglary on 7.1.2016 and his last conviction is on 5.2.2016.

30.  In mitigation, it was submitted that after he was last discharge from prison, the first defendant remained unemployed and he therefore committed the present offences out of greed.  It was conceded that charge 3 was committed while the first defendant was on bail for charge 1.  It was further submitted that given the first defendant’s age, it was very unlikely that he would re-offend after his has served the sentences for the present offences. It was his plan to go to the Mainland and live with his younger sister there in order to start a new life. The court was urged to impose a lenient sentence on the first defendant.

31.  The second defendant is aged 29, divorced and lived with his parents.  Prior to the arrest, he worked as a casual construction worker earning about HK$10,000 per month.  He contributed HK$1,500 to the household expenses.  He has 11 previous conviction records, 7 relate to dishonesty. Prior to the present case, he has not been convicted of the offence of burglary.  He was last convicted on 5.9.2016 for the offence of theft. 

32.  In mitigation, it was submitted that the second defendant committed the present offences out of greed and foolishness.  It was further submitted that the second defendant had learnt a lesson and would not commit serious crimes again.  The court was urged to impose a lenient sentence on the second defendant. 

Sentence

33.  There is a well settled sentencing guideline for burglary of non-domestic premises. According to the guideline, the starting point for a single burglary of non-domestic premises committed by a first offender of full age where there is no aggravating or mitigating feature is 2.5 years’ imprisonment.

34.  As to what will constitute aggravating features, it was held in HKSAR v Cheng Wai Kai, CACC 338 & 339/2007, at para 15 that:

“The starting point can be adjusted upwards if there are aggravating circumstances such as (1) the offence is carefully planned and skillfully executed involving the use of heavy instruments or equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous convictions of a similar nature, and (6) the offender commits multiple offences.”

35.  As far as the burglary of Shop 1 is concerned, I accept there is no aggravating features as the first defendant acted alone and the burglary was committed at night time when the shop was empty.  The value of stolen property was not substantial and was recovered.  However, the first defendant is a repeated offender and he was last convicted of burglary on 7.1.2016 and was sentenced to 2 years and 4 months’ imprisonment.  It appears that previous sentences cannot deter the first defendant from committing further burglary offences.  Therefore, I consider it appropriate in the circumstances to adjust the starting point upwards and adopt a starting point of 2 years and 9 months.  The sentence is reduced to 22 months for the first defendant’s guilty plea.

36.  In respect of the burglary of Shop 2, the aggravating feature is that the value of stolen properties was substantial and the stolen properties were not recovered.  In the circumstances, the appropriate starting point is 2 years and 9 months.  The sentence is reduced to 22 months for the second defendant’s guilty plea.

37.  Regarding charge 3, it is well settled the usual starting point for burglary is applicable to attempted burglary.  Since the attempt was committed by 2 persons, namely the two defendants, and there was some degree of planning in that crowbar was hidden in nearby construction site earlier for the purpose of this attempted burglary, I consider the usual starting point of 2.5 years should be adjusted upwards by 3 months for these aggravating features.  As far as the first defendant is concerned, this starting point is further adjusted upwards by 3 months for his being a repeated offender and 3 months for his committing this offence while on bail for charge 1.  Given both defendants pleaded guilty to this charge, they are each entitled to the usual 1/3 discount.  Therefore, the sentence for the first defendant is reduced to 26 months’ imprisonment while the sentence for the second defendant is reduced to 22 months’ imprisonment. 

38.  All the offences committed by the two defendants are entirely separate and distinct offences.  In theory, their sentences should run consecutively.  Taking into consideration the totality principle, I am satisfied that a total sentence of 36 months is sufficient to reflect the criminality of the first defendant’s act.  I therefore order that 14 months of charge 3 to run consecutive to the sentence of charge 1, making a total sentence of 36 months.  I hereby sentence the first defendant to 36 months’ imprisonment.  For the second defendant, I am satisfied that a total sentence of 33 months is sufficient to reflect the criminality of his act.  I therefore order that 11 months of charge 3 to run consecutive to the sentence of charge 2, making a total sentence of 33 months. I hereby sentence the second defendant to 33 months’ imprisonment.