HKSAR v. CHEUNG HO WAH AND OTHERS

DCCC 864/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 864 OF 2010

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REASONS FOR SENTENCE OF D1 & D2

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1.  D1 and D2 plead guilty to two joint charges with D3 of attempted burglary and burglary of domestic premises, contrary to section 11 of the Theft Ordinance, Chapter 210 (charges 1 & 2).

2.  In summary in the early evening of the 29th May last year Madam Tsang, the tenant of the 2/F of No 45A Lung Mei Tsuen, a three  storey village House in Tai Po, looked out of the window and saw the three defendants walking towards the ground floor of No. 45B.  The defendants used some tools to try prize open the gate but were unsuccessful.  The damage to the gate as seen from the photographs show a determined effort was made to try and break into the ground floor of No. 45B.  Madam Tsang on seeing this immediately called the police.

3.  The defendants then walked towards the ground floor of No. 45A.  Madam Tsang was unable to see what was happening but heard the sound of prizing and a short while later saw two of the defendants carrying a bag.  The defendants had prized open a window on the ground floor and ransacked No. 45A, stealing the items particularised in charge 2. 

4.  After they came out of the home they boarded a vehicle which drove off and hit the concrete curb, causing the front number plate to fall off.  At about 1926 hours the police spotted the vehicle.  After pursuing the vehicle for some distance, the vehicle stopped and the three defendants alighted, threw something into the nearby garden and ran away.  The police were able to stop all three defendants. Gloves were found in each of the defendants’ pockets.  As a result of a search of the garden the police found all the items stolen in the burglary together with 2 crowbars, 2 screwdrivers and 6 gloves. 

5.  In passing sentence I have carefully considered everything said by Mr So together with the letters submitted on behalf of D1.  I have carefully considered everything said on behalf of D2 by Mr Cahill together with the Social Welfare report prepared in 2003.   Mr Cahill asks that I call for a background report on D2. I am satisfied I have been told all I need to know about D2 by Mr Cahill and that a background report will not assist in sentencing. 

6.  The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years imprisonment (see Attorney General v LUI Kam-chi [1993] 1 HKC 215 as applied in Attorney General v LO Ching-fai [1996] 2 HKCLR 19). 

7.  Both burglaries were committed at the same time, the burglary of No. 45A occurring immediately after the defendants failed in their attempt to break open the gate of No. 45B.  Taking into account there was two burglaries committed at the same time by three defendants I am satisfied a starting point of 3 years and 6 months imprisonment is appropriate for each offence (see HKSAR v CHENG Wai-kai  CACC 338/2007).

8.  D1 and D2 are properly to be regarded as persistent offenders, both having multiple convictions for offences of dishonesty, including burglary.  I also note that both defendants were last released from prison in January 2010, only a few months before the commission of the present offences.  I am satisfied the proper starting points after trial are to be further increased by 6 months to 4 years imprisonment (see HKSAR v CHAN Pui-chi [1999] 2 HKLRD 830).

9.  Giving D1 and D2 full credit for their pleas of guilty they are both sentenced to 2 years and 8 months imprisonment, concurrent on each charge.