HKSAR v. YIM YAU YIU also known as LUI CHI YUNG

DCCC 642/2023

[2024] HKDC 514

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 642 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to one offence of burglary. This offence occurred at a residential building in Yau Ma Tei, the flat which was resided in by the 1^st prosecution witness and her aunt.

2.  In the afternoon of 13 February 2023, the residents had left the flat. The metal gate and the main door had been locked.  Later in the evening around 10.50 pm PW1 to return home and the metal gate and the main door were found to be ajar at that time.  Items had been stolen and can see from the indictment six watches, 17 gold ornaments, and an iPhone had gone missing from various locations within the flat. 

3.  CCTV at the building showed the defendant entering the lobby at around 6 o’clock in the evening, taking the lift and leaving just after 6.48 with three bags.  Based on this observation, the defendant was arrested at his own residence on 21 February 2023.

4.  Under caution, the defendant had admitted committing the burglary.  He said all the property from the burglary had been given to one Ah Lo.  He had not received any reward.  A house search found no items from the burglary.  A further interview was conducted.  Again, the defendant admitted taking part in the burglary, being there between 6 and 7 in the evening, that there was no one in the flat.  He admitted taking the items.  He said he met a person called Ah Lo at a park, sold the property to him for some $10,000 but had never received payment for it.  The defendant also admitted he prised open the main gate and door to the flat with an iron bar and that is how he gained admission into the premises. 

5.  As far as the defendant’s antecedents are concerned, he is now 59 years old.  He’s single and educated to Grade 6 in primary school, in generally good health condition, lives alone.  He has a substantial criminal record dating all the way back to 1981.  He has some 31 previous convictions and some 40 charges, a total of 14 of those involved dishonesty.  Most recently, a total of five offences in November of 2021 including burglary.  Defendant received a total of some 40 months’ imprisonment.  I do not have his most recent release date but it was obviously before these offences were committed. 

6.  As far as the approach to sentence is concerned there is guidelines as to the starting point for sentence in burglary cases.  This is a domestic or residential premises burglary.  The normal starting point for sentence, aside from any other aggravating or mitigating factors, would be one of 36 months or 3 years’ imprisonment for a conviction after trial for a person of clear record. 

7.  I have born in mind whether any aggravating factors exist.  A number of aggravating factors can exist in the commission of any burglary.  This perhaps may be described as a run-of-the-mill burglary.  The only aggravating factors that appears to exist in this case is the defendant’s previous convictions for burglary which show that in respect of him previous sentencing for this offence has not had a sufficient deterrent effect and that allows the court to increase the starting point for sentence to reflect that aggravating factor.

8.  As far as mitigating factors are concerned there is one and only one mitigating factors and that is that the defendant’s plea of guilty which has been indicated from an early stage.  This entitles the defendant to a full one-third discount, the starting point for sentence determined by the court.

9.  The initial starting point in this case obviously must be 36 months. The aggravating factor will add, in his case, an extra 6 months to that sentence.  That leads to a starting point for sentence of 42 months’ imprisonment. The defendant is entitled to a one-third discount that by my calculations leads to a final sentence of 28 months’ imprisonment.  That will be the sentence imposed today.