HKSAR v. YAU CHI WAI

DCCC 127/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 127 OF 2013

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REASONS FOR SENTENCE

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The defendant pleaded guilty to 6 charges of "Burglary". The burgled premises are all non-domestic premises.

Summary of Facts

2.  The modus operandi in all 6 charges is identical.  The defendant entered into the burgled premises at night and stole renovation tools and materials.

3.  A total of 3 locations are involved in this case.  Charges 1 and 4 involve an elderly home situated at 1^st Floor, Kam Wah Building in Yau Ma Tei (Premises A). Charges 2, 3 and 6 involve a restaurant situated at Ground and 1^st Floors, Bik Lan House in Yau Ma Tei (Premises B).  Charge 5 involves a non-residential unit situated at Flat H, 1^st Floor, Shanghai Mansion in Yau Ma Tei (Premises C).  Premises A, B and C were all under renovation on the respective offence dates. 

4.  About 10:00 pm on 21 November 2012, having committed Charge 6, the defendant, who was wearing a pair of gloves, was stopped by the Police at the rear lane of Premises B.  Upon search, 2 torches were found in his trouser pocket.  Copper wires and some renovation tools were found in the backpack carried by him.  A nylon bag, which contained renovation tools, was also found near the door from which the defendant came out.

5.  Under caution, the defendant admitted that he had climbed into Premises B and stolen the bags and renovation tools because he had no money.  He intended to use the bicycle parked in the rear lane of Premises B to leave the scene.

6.  In his video recorded interviews, the defendant admitted that he had committed Charges 1 to 5 on the respective offence dates.  He said he climbed the scaffoldings and entered the respective premises through their windows.  He then stole wires and renovation tools from those premises and sold them for money.

Mitigation & Sentence

7. The defendant is now 36 and single. He has 19 criminal records involving 3 burglary-related offences and multiple theft offences. His last conviction is dated January 2011; he was sentenced to 20 months for "Attempted Burglary". He was released on 11 November 2011.

8. Defence counsel Ms. LAM submitted that after release from prison, the defendant found a job as a waiter earning about $7,000 per month. Unfortunately, the restaurant was closed in September 2012. He then ran into financial difficulty. At the same time, he had to support his father (aged 63). Ms. LAM also submitted that Charges 1 to 6 were opportunistic crimes. She stressed that the defendant acted alone, and no person was alarmed or injured on any occasion.

9. All 6 charges were committed within 2 months, whereas Premises A and B were burgled twice and 3 times respectively. In the commission of Charge 6, the defendant wore gloves and carried with him 2 torches; he also had a get-away bicycle ready. In my view, the defendant was most certainly not an opportunistic burglar.

10. 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. There is sufficient social welfare protection in modern Hong Kong for the poor to meet their basic needs. Having lived in Hong Kong for almost 30 years and being a released prisoner, the defendant must have known how to seek help.

11. In Charges 1 to 5, the defendant stole tools and materials which were worth an approximate total sum of $40,000. All the stolen properties in Charge 6 were recovered; they were worth $9,700.

12. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. Based on the nature and value of the stolen items, the mode of stealing and the defendant being a serial burglar[1] as well as a repeated offender[2], I adopt a starting point of 3 years' imprisonment for each charge. A one-third discount is given for the guilty plea, reducing the sentence to 2 years. Apart from this, there is no other mitigating factors which warrant any further reduction. The sentence for each charge is 2 years' imprisonment.

13. Bearing in mind the totality principle, I consider a global starting point of 6.5 years to be appropriate for all 6 charges. With the guilty pleas, the overall sentence becomes 4 years and 4 months. Hence, I make the following order :-

(i) Charges 1 and 4 to run concurrently;

(ii) Charges 2, 3 and 6 to run concurrently, but consecutive to all other charges; and

(iii) 4 months in Charge 5 to run consecutive to all other charges.

Thus, arriving at a total prison term of 4 years and 4 months.