HKSAR v. LEUNG WAI YAU

DCCC 922/ 2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 922 OF 2009

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Reasons for Sentence

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The charge and facts

1.  The Defendant pleads guilty to burglary of a godown. 

2.  HO Koon-kam was the tenant of Wo Sang Godown, Lot 1836, DD76, Sha Tau Kok Road – Ma Mei Ha, Fanling, New Territories (“Warehouse”) where he stored construction tools and materials.  On 2 July 2009, he left the Warehouse with the door unlocked and half-closed. 

3.  At around 12:00 noon on 21 July 2009, HO returned to the Warehouse and found one bundle of welding wire (valued at HK$6,000) and one bundle of vehicle wire (valued at HK$2,000) missing.  The CCTV footage revealed that a male had entered the Warehouse at around 3:02 a.m. on 5 July 2009 and took away certain items from the Warehouse.  The male remained there until 5:04 a.m.  HO made a report to the police.

4.  On 22 July 2009, PC 7146 attended the Warehouse and viewed the CCTV footage.  On the same day, he located the Defendant, who resembled the appearance of the male who appeared in the CCTV footage.  He intercepted the Defendant for enquiries.  Under caution, the Defendant said that:

(1)    He had entered the Warehouse on 5 July 2009 and stolen some wires;

(2)    He had sold the wires in a metal shop in Luen Wo Hui for HK$600;

(3)    He had then spent the money.

Mitigation put forward

5. The Defendant is 43 years of age.  He has a large number of criminal records.  He has 4 records for burglary, the last of which is dated 1999.    He lives with his aged parents, who both have hypertension and diabetes.  His wife and 1-year-old daughter live in Shenzhen.  He had been a cross-border driver for 8 years until last year when the company ceased business.  He became jobless afterwards. 

6. It is submitted that he was just a walk-in burglar.  He stayed inside the godown for 2 hours as the wires were heavy to move.  He sold them for $600.  

Sentencing principles

Tariffs for burglary of non-domestic premises

7.         In R v Wong Man [1993] 1 HKC 80, the Court of Appeal said that the proper starting point for non-domestic premises would be 2 ½ years’ imprisonment for a first offender of full age (as per Macdougall JA), as later affirmed in HKSAR v Sim Ka-wing, CACC 450/2000.

Opportunistic burglar

8.         Sim Ka-wingwas also an important decision for sentencing the opportunistic burglar.  Keith JA explained the conventional starting point:

9.         The conventional starting-point of 2 ½ years' imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point. The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find. Likewise, the conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value. In our opinion, the degree of planning and premeditation in this case was more (though not much more) than normal and justified a modest increase in the starting-point.

The sentence I pass

9.         Based on Wong Man, I shall consider a starting point of 2 ½ years’ imprisonment.  However, there is nothing to contradict the defence allegation that the Defendant was an opportunistic burglar, as explained in Sim Ka-wing as a circumstance of weight to reduce the culpability.  I am going to take a starting point of 1 ½ years.  I givea one-third discount for the plea of guilty.  There are no other mitigating factors.  The sentence is 1 year’s imprisonment.