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DCCC 874/2014
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 874 OF 2014
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HKSAR |
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v |
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YEUNG Chung-ming, Lowlly |
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| Before : |
H.H. Judge G. Lam |
| Present : |
Ms. Fontaine LAI, PP, of the Department of Justice, for HKSAR. |
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Mr. Laurie LAM of M/s Hastings & Co., assigned by the Director of Legal Aid, for the defendant. |
| Offences : |
(1) & (2) Burglary（入屋犯法） |
REASONS FOR SENTENCE
The defendant pleaded guilty to 2 charges of "Burglary" (Charges 1 & 2). He burgled the same premises twice within 10 days. The burgled premises are non-domestic.
Summary of Facts
2. PW1 (Mr. CHIM) is the owner of a fast food shop situated at the address particularized in both charges ("the Shop"). The kitchen of the Shop has an air vent facing the rear alley. The rear alley has a metal gate.
Charge 1
3. PW1 left the Shop at 10:00 pm on 31 July 2014. He returned at 6:30 am the following day. He found missing from the drawer at the cashier counter cash in the sum of $6,812. He also found the cover of the air vent in the kitchen having been removed; the metal gate in the rear alley opened; and signs of ransacking in the Shop.
Charge 2
4. About 12:30 am on 10 August 2014, a cleaner (PW2 Mr. CHUNG) saw the defendant acting furtively near the Shop, so he called the Police. The Police arrived in about 10 minutes. PW5 (PC 9577) saw the defendant climbing into the Shop through the air vent. Shortly afterwards, PW3 (PC 14770) saw the defendant leaving the rear alley via its metal gate and intercepted him.
5. Upon search, a nylon bag containing tools fit for burglary (namely 1 bolt cutter, 2 pliers, 1 adjustable spanner, 4 screwdrivers, 1 cutter, 1 torch and 1 pair of gloves) was found in the defendant's possession. A black rucksack containing 6 boxes of drinks (1 box having been consumed) and some other items was also found in the nylon bag.
6. PW1 later returned to the Shop and found 6 boxes of drinks (with a total value of $16) missing.
7. Under caution, the defendant admitted at the scene that he had stolen from the Shop twice. This time, he stole a few boxes of Vitasoy but did not steal any money. On the previous occasion, he had stolen money.
8. In his video-recorded interviews, the defendant admitted having committed the burglary offences in Charges 1 and 2. He also admitted that the tools found on him at the time of arrest belong to him.
Mitigation & Sentence
9. The defendant is 40 and single. He has 10 criminal records including 2 Robbery offences, 3 Theft offences and 2 Going equipped for stealing offences. His last conviction is dated August 2014; he was sentenced to 4 months and 5 weeks for "Going equipped for stealing" and "Resisting a police officer". He has finished serving that sentence.
10. Defence lawyer Mr. LAM informed me that the defendant is a casual decoration worker who could earn $15,000 per month. Unfortunately, his last job was in May this year. At the time of the offences, the defendant was out of jobs and had no money, but needed to support his parents (both over 80). Mr. LAM submitted that the defendant was cooperative with the Police throughout. He admitted Charge 1 on his own volition.[1] Furthermore, the loss suffered by PW1 in both charges is very small.
11. Charges 1 and 2 cover a time span of only 10 days and the locations are the same.[2] The defendant admitted that he wore gloves when committing both offences. He had numerous tools with him right after committing Charge 2. He was no doubt a well-equipped burglar.
12. 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. Being a released prisoner, the defendant must have known how to seek help.
13. 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's background, I adopt a starting point of 2.5 years' imprisonment for each charge. A one-third discount is given for the guilty plea, reducing the sentence to 20 months. Apart from this, I see no other mitigating factors which warrant any further reduction. The sentence for each charge is 20 months' imprisonment.
14. Bearing in mind the totality principle, I order 8 months in Charge 2 to run consecutive to Charge 1, thereby arriving at a total prison term of 28 months.
[1] In HKSAR v MA Ming [2013] 1 HKLRD 813, Yeung V-P held "When dealing with individual cases and when considering the totality of the sentence, the court, in exercising its discretion, can take into account the fact that the frank confession of the defendant provides the only evidence which support the charge or charges and therefore make minor adjustments to the total sentence. To this we do not object. However, this factor does not support the argument that this kind of defendants must be given a further discount over and above the one third discount. If the court does not give such defendants any discount in addition to the one third discount, that does not constitute an arguable ground of appeal." (para. 32 at p.821)
[2] The English Court of Appeal in R v Brewster & others [1998] 1 Cr.App.R.(S.) 181 held that repeated visits to the same premises constitute an aggravating feature in domestic burglaries. (pp.185 to 186)
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