HKSAR v. SHEK YUEN

DCCC 825/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.825 OF 2011

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Reasons for Sentence

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1.  The defendant pleaded guilty to 4 charges of burglary and 1 charge of attempted burglary, admitted to the summary of facts and was duly convicted of all charges.

Summary of facts

Charges 1 and 2

2.  The premises that the defendant burgled in charge 1 and 2 was a restaurant named “Tung Fong Siu Kee Yuen” situated at the ground floor of no.241 Hennessy Road, Wanchai. On the morning of 9^th April, staff of the restaurant returned to work to find the bolt of the lock of the rear entrance of the restaurant fallen to the ground. The cash register of the restaurant had been prized open and cash of about $1,800 stolen.

3.  Two days later on 11^th April, staff returned to work again to find the rear entrance to the same restaurant prized open. This time, the whole cash register together with cash of about $1,000 was stolen.

4.  Closed circuit television recording showed that a person had entered the restaurant in the early hours of 11^th April and had taken away the cash register.

Charge 3

5.  6 days later, on 17^th April, staff of another restaurant, “Sun Ka Mei Restaurant”, situated at the ground floor of No.26-28 Morrison Hill Road, Wanchai returned to work in the morning to find the rear entrance of the restaurant prized open. Cash of about $150 was stolen from the restaurant.

Charge 4

6.  9 days later, on 26^th April, the rear entrance of yet another restaurant, “Old Bazaar Kitchen ”, situated at ground floor, no. 207 Wan Chai Road, Wanchai was found to have been opened despite staff having locked it before leaving the restaurant. A safe, which contained 2 check books and cash of about $1,000 was found to have been stolen from the restaurant.

7.  Closed circuit television recording showed a person entering the restaurant in the early hours of 26^th April and later left with the safe.

Charge 5

8.  About 1 month later on 24^th May 2011, at around 00:23am, while Police officers were conducting an anti-burglary operation in the area of Morrison Hill Road and Yat Sin Street, the defendant was seen walking along Morrison Hill Road and then turning into Yat Sin Street. The defendant kept turning around and checking behind him.

9.  The defendant was then seen walking to the rear entrance of “Sun Ka Mei Restaurant”, the restaurant that was burgled in charge 2. The defendant took out a crowbar from his bag and prized at the rear entrance. Police went up to the defendant and confronted him. The defendant threw down the crowbar and tried to flee by was stopped by Police officers. The crowbar and a pair of gloves were found on the ground and prize marks were found at the rear entrance of the restaurant.

10.  The defendant’s bag was searched and inside were found a hammer, 3 screwdrivers, 1 skeleton key, 1 surgical mask and 1 pair of gloves.

11.  Under caution, the defendant that he had used up all the money from his past burglaries and he was trying to find some more. In his subsequent cautioned interviews, the defendant further admitted that he had burgled the restaurants in charges 1 to 4. The defendant said he used the same crowbar he was caught using to prize open the rear entrances of the restaurants and stole the properties. The defendant said he used the screwdrivers to force open the cash register once he got them home and he used an electronic drill to open the safe to get to the money inside.

Previous conviction

12.  The defendant has a clear record.

Mitigation

13.  Mr. Pang submitted the following in mitigation. The defendant is 32, born in China and educated up to Form 3 level. He finished vocational training in 2009. He had been working as a security guard between July 2009 and March 2010. He had been unemployed since then.

14.  He was unemployed but had lost money in gambling in horseracing and football, which was why he committed the offences.

15.  Mr. Pang informed me that he had advised the defendant that for the offences he had pleaded guilty to, the usual starting point is that of 30 months’ imprisonment. Mr. Pang pointed out that the defendant was cooperative after his arrest and confessed to the Police about the first 4 offences. But for his confession, it would have been difficult for the prosecution to prove those offences against the defendant.

16.  After hearing from Mr. Pang for the defendant, I opined that I find it rather unusual for someone of the defendant’s age, who is of clear record, to suddenly go on a burglary spree.

17.  It so happened that the defendant’s mother was in court and she informed the court that the defendant was assessed as suffering from mental retardation and that he was on some kind of disability allowance. I therefore ordered that 2 psychiatrist reports be prepared on the defendant to assist the court in sentencing.

18.  According to the reports, the defendant does suffer from mild grade mental retardation. The defendant however clearly understands his wrongdoings and their consequences.

19.  It is disclosed in the reports that the defendant started gambling at the age of 20 and would occasionally use up all his earnings on horseracing. The defendant said he had previously tried to steal his mothers’ jewelries and then pawn them to subsidize his gambling. Out of greediness, he decided to break into the restaurants for money. The defendant said he had spent the stolen money immediately on food and video games. The defendant chose those restaurants to break in as they were easier to break in than other shops in the area where he lived.

20.  It is the opinion of both psychiatrists that, despite his mental retardation, the defendant does not suffer from psychiatric illness and that he is mentally fit to plead and to serve any ordinary sentence as deemed appropriate by the court.

Sentencing tariffs

21.  It is well established law and accepted by Mr. Pang that the starting point for burglary or attempted burglary of non-domestic premises is that of 2 and a half years’ imprisonment. It is not disputed that the premises burgled by the defendant were all non-domestic premises.

Sentence

22.  The defendant was found carrying a bag with a hammer, 3 screwdrivers, 1 skeleton key, 1 surgical mask and 1 pair of gloves when he was caught red handed in relation to charge 5. Together with the crowbar that he was using, the defendant was clearly well equipped for the burglary. The defendant had also thought about which restaurants to burgle, he had obviously scouted the area before choosing his targets. He in fact had chosen to burgle the same restaurant twice in relation to charge 3 and 5.

23.  Despite the fact that the defendant is of mild grade mental retardation, he knew what he was doing, planned the burglaries rather well and was daring enough to take the cash registers and the safe home so that he would have more time to prize or drill them open as the case required.

24.  I find that there is no good reason to depart from the sentencing tariffs. I will therefore adopt a starting point of 2 and a half years’ imprisonment in relation to each of the 5 charges, reducing them by one third in recognition of the defendant’s guilty pleas and sentence him on each charge to 20 months’ imprisonment.

Totality

25.  The offences were committed on different days and each was independent of the others. The burglaries all took place in the Wanchai area. They were committed within a period of around 1 month and 2 weeks.

26.  Bearing in mind the principle of totality, I will order that 4 months of each of the sentence in charges 2, 3, 4 and 5 be served consecutively to the sentence in charge 1, the rest to be served concurrently. The defendant is therefore sentenced to a total of 36 months’ imprisonment.