HKSAR v. HUI PING KEI AND ANOTHER

DCCC 840/2019

[2020] HKDC 277

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 840 OF 2019

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REASONS FOR SENTENCE

Both D1 and D2 pleaded guilty to a joint charge of "Burglary".

Summary of Facts

2.  The burgled premises are a vegetable shop situated at Ground Floor, No.55 Pei Ho Street, Sham Shui Po ("the Shop").

3.  About 7:30 p.m. on 11 June 2019, Madam Leung (PW1) was closing down the Shop for the day.  She locked the safe in the store room.  Then she pulled down the roller shutters halfway until they reached the level of the shelves, and filled up the remaining space with sundries.

4.  PW1 returned to the Shop around 7:00 a.m. the following day.  She found the safe in the store room having been prized open; and cash in sum of $4,770 missing from the safe.  The Police was alerted.

5.  CCTV footage of the Shop captured 2 males (Male 1 wearing a white cap; and Male 2, a black cap) entering the premises through the roller shutter of the side entrance, which was half-open, around 1:10 a.m. on 12 June 2019.  They then went into the store room and prized open the safe using a crowbar-like object.  They left the Shop after about 15 minutes.  Male 1 returned to the Shop alone around 1:35 a.m. and approached the safe.  He looked around the safe and left after a few minutes.

Arrest of D1 and D2

6.  About 10:30 a.m. on 2 July 2019, at the back staircase of a building situated at Nos.265-267 Tai Nan Street ("the Building") in Sham Shui Po, police officers arrested D1 and D2 for "Burglary".  At that time, they were each sitting on a mattress near the staircase.  Upon search, a key which could open the door at the Building's entrance was found on D2.  A crowbar was also found between the wall and the mattress which D2 sat on.

Admissions

7.  Under caution, D1 claimed that D2 asked him to help prizing open the safe in the Shop.  He merely accompanied D2 to the Shop; whereas D2 took all the money stolen from the Shop without giving D1 any.

8.  In his video recorded interview, D1 admitted that he had been living at the back staircase of the Building together with D2 for about 2 months.  Around midnight on 12 June 2019, D2 told D1 that the Shop was unlocked and asked D1 to follow him to take a look.  D2 also asked D1 to bring along the crowbar placed next to D2's mattress.  D1 described how he and D2 entered the Shop and how they opened the safe in the store room.

9.  Under caution, D2 denied having burgled the Shop.  He claimed that he and D1 went to the Shop to seek shelter from the heavy rain.

10.  In his video recorded interview, D2 admitted having known D1 for 30 years, but denied what D1 had said in D1's video recorded interview.

Mitigation

D1

11.  He is 46 and has 5 conviction records, including 1 "Theft" offence in 2004 for which he was given a fine.  His counsel Mr. Ma informed me that D1 came to Hong Kong from the mainland in 2001.  He is divorced and was unemployed at the time of the offence. 

12.  In mitigation, Mr. Ma submitted that D1 committed the present offence out of momentary greed upon hearing from D2 that the roller shutters of the Shop were half-open.  Mr. Ma described the present offence as an opportunistic crime which only a small sum of cash was stolen.  A letter from D1 was placed before me; its contents are duly noted.

D2

13.  He is 41 and has 1 conviction record, which is not theft-related.  His counsel Ms. Nam informed me that D2 is divorced and resides with his mother and daughter (aged 16).  D2 came to Hong Kong from the mainland in 2012.  He used to be a construction worker, but he was sentenced to DATC in April 2018.  He has been unemployed after being released.

14.  In mitigation, Ms. Nam submitted that D2 accepts that the burglary was a joint enterprise but denies that it was his idea.  D2 is willing to pay back the Shop half of the sum stolen (i.e. $2,385) using the cash in his prisoner's parcel.  A letter from D2 was placed before me; its contents are duly noted.

Sentence

15. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. Although the roller shutters of the Shop were half-open, it did not in any way serve as an invitation for D1 and D2 to go in to steal. Both defence counsel acknowledged that an aggravating factor in the present case is D1 and D2 acted in concert. Some typical tools were used as well.

16. Whilst the present offence was committed by D1 and D2 as a joint enterprise, I accept that there is a slight element of "opportunistic burglary". The cash stolen is not a significant sum either. Hence, I adopt a starting point of 2.5 years' imprisonment for both defendants. With their timely guilty pleas, the sentence is reduced to 20 months each.

17. I have viewed some screen shot photos of the CCTV footage. The face of each culprit is not clearly shown. As confirmed by prosecuting counsel Mr. Chan, the evidence against D1 and D2 came solely from their admissions. Mr. Chan informed me that some fingerprints were lifted from the crowbar but the results are not yet available. Meanwhile, both defendants have already indicated their intention to plead guilty to the charge.

18. On this basis, I am prepared to grant each defendant an additional discount of 1 month[1], reducing the sentence to 19 months.

19. For D2, he is willing and able to pay back his share of the cash stolen from the Shop. I will grant him a further discount of 1 month, reducing his sentence to 18 months.

20. Based on the reasons stated above, I sentence D1 and D2 to 19 months' imprisonment and 18 months' imprisonment respectively.