HKSAR v. CHAN TAK CHEUNG

DCCC 7/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 7 OF 2016

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REASONS FOR SENTENCE

The defendant pleaded guilty to 1 charge of "Theft" (Charge 1) and 1 charge of "Burglary" (Charge 2). In Charge 1, he stole some household items placed outside a village house; whereas in Charge 2, he burgled a single-storey warehouse in Yuen Long.

Summary of Facts

Charge 1

2.  No.51 Nam Hang Tsuen, Yuen Long ("the Land") has an area of 8,000 ft². It is surrounded by wire mesh, and a 2-storey village house was built on it. The Land was owned by Madam TANG (PW1) and was used for holiday purpose.  She last visited the Land on 24 August 2015.

3.  On 24 October 2015, PW1 returned to the Land and found an opening (about 0.5m x 1m in size) on the wire mesh.  She also discovered the following items, which were placed outside the village house, missing :-

(i) 8 glass doors with frames (valued at $5,000);

(ii) 1 copper pipe about 15m in length (valued at $6,000); and

(iii) 1 washing machine (valued at $2,000)

PW1 reported the matter to the Police.

4.  About 7:00 p.m. on 6 November 2015, PC 1154 stopped the defendant at Nam Hang Tsuen near Lamppost VD 8551 for enquiry.  The defendant told PC 1154 that he knew he could not escape.  Under caution, the defendant admitted, inter alia, that in mid-October 2015, he used a pair of pliers to cut open the wire mesh.  Then he stole the copper pipe, glass doors and washing machine from the Land.  He sold those items for $500.  The defendant claimed that he committed theft because his grandfather had passed away and he needed money.  PC 1154 seized a pair of pliers from him.  Later on in the same evening, the defendant led PC 1154 to the Land to show him where the offence took place.

Charge 2

5.  No.38A Nam Hang Tsuen, Yuen Long is a 1,800 ft² single-storey warehouse ("the Warehouse").  Its owner was Mr. CHEUNG (PW2).  He last visited the Warehouse in the morning on 3 November 2015.

6.  About 9:00 a.m. on 4 November, PW2 returned to the Warehouse and found the iron lock of the Warehouse damaged; 3 cap screws of the Warehouse door unscrewed and fallen onto the ground; the CCTV wire cut and the main power for the CCTV switched off.  He also discovered the following items missing :-

(i) 1 barrel (E1) containing about 200 pieces of copper pipe accessories such as nuts and bolts (valued at $250);

(ii) 1 remote control crane (E2; valued at $1,200);

(iii) 1 wallpaper scraper (E3; valued at $10); and

(iv) 1 bag (E4; valued at $5)

PW2 reported the matter to the Police.

7.  About 3:35 p.m. on 10 November, PC 8735 stopped the defendant outside his home at Nam Hang Tsuen for enquiry.  E1 (containing E3 and E4) was right next to the defendant. Upon initial enquiry, the defendant told PC 8735 that he had stolen E1.  Under caution, the defendant admitted, inter alia, that about 5:00 a.m. on 4 November, he used a pair of pliers to cut the CCTV wire at the Warehouse and switched off its power.  He also used the same pair of pliers to break the iron door to gain entry inside.  He then stole E1, E2 and some copper pipe accessories.  He had already sold E2 and the copper pipe accessories for $500. The defendant claimed that he committed burglary because his grandfather had passed away and he had spent all his money on the funeral.  PC 8735 seized E1, E3 and E4 as exhibits.

8.  In his video recorded interview, the defendant repeated his admissions which he made to PC 8735 earlier.  On 11 November, police officers searched the defendant's home in his presence.  E2 was found and seized by DPC 12076.  The defendant explained that he made a mistake when he told the Police that he had already sold E2.

Mitigation & Sentence

9. The defendant is 34 and married. He has 5 conviction records, which included 1 "Burglary" offence and 2 theft-related offences. Defence counsel Mr. MA informed me that the defendant has a daughter (aged 13) from his previous marriage. His daughter resided with him until he was arrested for the present offences. She is now looked after by his friend and her case is followed by a social worker. The defendant needs to support his daughter as well as his current wife (who resides in the mainland).

10. In mitigation, Mr. MA submitted that the defendant has been residing at Nam Hang Tsuen all along with his grandfather. He used to work in a recycle company earning $15,000 per month. In July 2015, he became a construction worker but was dismissed without being paid. About the same time, his grandfather passed away. The defendant had to borrow money from friends but it was still not enough.

11. Mr. MA stressed that the village house in Charge 1 was unattended and unoccupied at the time of the offence; it was used for holiday purpose only. Regarding Charge 2, Mr. MA submitted that the only evidence against the defendant was his confession. Although stolen properties were found at his home, those are very common items and there is no direct proof of their ownership.

12. Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. I note that the defendant's previous convictions all took place between 1997 and 1999 during his teenage years. He has remained trouble-free since. This is certainly to his advantage.

13. For Charge 1, although the Land was fenced off by wire mesh, the stolen properties were placed outside the village house, which, in my view, must have reflected the conditions and/or value of those items to some extent. I adopt a starting point of 12 months' imprisonment. With the guilty plea, the sentence is reduced to 8 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 8 months' imprisonment.

14. For Charge 2, the normal starting point for non-domestic burglary is 2.5 years' imprisonment. I adopt the same as the starting point. With the guilty plea, the sentence is reduced to 20 months. I sentence the defendant to 20 months' imprisonment.

15. Bearing in mind the totality principle, I consider a global starting point of 3 years to be appropriate for both charges. With the guilty pleas, the overall sentence becomes 2 years. I note that the evidence against the defendant for Charge 2 came solely from his confession, I will grant him an additional discount of 2 months[1], reducing the overall sentence to 22 months. Hence, I order 2 months in Charge 1 to run consecutive to Charge 2; thereby arriving at a total prison term of 22 months.