HKSAR v. WONG PUI LUN

DCCC769/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.769 OF 2010

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Reasons for Sentence

1.  The defendant faces one charge of burglary, contrary to s.11(1)(b) and (4) of the Theft Ordinance, Cap. 210. It is alleged that the defendant on 8^th June 2010 in Hong Kong, having entered as a trespasser part of a building known as the construction site near no.10 Fong Ma Po, Lam Kam Road, Tai Po, New Territories, stole therein one bag of electric wires.

2.  The defendant pleaded guilty, admitted to the amended summary of facts and was duly convicted.

Summary of facts

3.  At the material times, a 3-storey village house (“the house”) was under construction at the charge address. Walls of the house had been erected and the roof had been laid. Window frames and door frame were in place but the glasses and door were yet to be installed.

4.  At around 5:35pm on 7^th June 2010, PW1, a renovation worker working at the house, stored some electric wires (valued at HK$400 in total) in the house before leaving.

5.  PC5366 and 7315 (PW2 and 3) were conducting anti-crime patrol in the vicinity of the house in the small hours of 8^th June 2010. At around 5:05am, PW2 saw the defendant acting suspiciously near the house. The defendant was riding a bicycle and holding a plastic bag in his hand. Upon noticing PW2, the defendant immediately dumped the plastic bag on the ground and fled. PW2 found some electric wires inside the plastic bag.

6.  The police conducted sweeping search in the vicinity to locate the defendant. At around 5:10am, PW3 intercepted the defendant who was riding on a bicycle and acting furtively. PW3 revealed his police identity and the defendant asked for a chance. PW3 arrested the defendant and cautioned him. Under caution, the defendant admitted that he stole the electric wires out of greed as he was running out of money. The defendant subsequently led PW3 to recover the electric wires and confessed to PW3 that he had stolen them from the house.

7.  The defendant led PW3 to the house and admitted under caution that he had gone into the entrance at the ground floor of the house and found the electric wires placed on the floor near the entrance inside the house. He put the electric wires into a plastic bag he picked up inside the house and left. PW1 later confirmed that the electric wires recovered were the wires which he had stored in the house on 7^th June 2010.

Previous

8.  The defendant had a clear record.

Mitigation

9.  The defendant is 26, single. He is educated up to F.3 level. After quitting school, he worked as a delivery person and decoration worker. He is currently unemployed. The defendant has no known health problem and is not a drug addict. His father, 55, is employed with an insecticide company. His mother, 54, is a housewife. Younger sister aged 21, all 3 of them living in Tsuen Wan.

10.  The defendant since birth been living in his grandfather’s house in Lam Cheung of Tai Po. In mid-2009, his grandfather passed away and he continued living there. Most of the off springs of his grandfather are in England and would only return to Hong Kong occasionally. Most of the time the defendant lives alone. The defendant does not have to pay any rent. During the period from 11.2008 to 2.2009, the defendant worked as a delivery worker and driver up to around June 2009, when he started to work as a decoration worker, working near his home, earning around 8-9K per month. He had been paying 1-2k to his father in support.

11.  From July 2009 up to now, the defendant has been unemployed, but he had not applied for CSSA. The defendant has driving license for class 1 and 2 vehicles.

12.  The offence happened around 5am, near dawn. The defendant had been unemployed for nearly a whole year at the time of the offence. A couple of days before his arrest on 8^th June, the defendant did not have food for a couple of days and was starving. He had spent all his money. Yet he did not ask his father for money, cause he know that if he did so, his dad will have to borrow from relatives or somebody else.

13.  Just before dawn on the charge date, the defendant woke up and went out of his home, walked by a construction site of a small house, the charge property in questions. The defendant saw some wiring were at the entrance and thought they might be of some value. A sudden thought of greed sprung up in his mind. He did not have any equipment or weapon on him, not even a torch light.  He entered and picked up a black plastic bag and put the wiring inside. In the incident, no one was hurt and nothing was damaged. There was no premeditation, not accomplice, no weapon, no damage. The defendant just walked in without causing damage, without breaking any windows. The property stolen was worth only $400.

Sentencing tariff and authorities

14.  The established tariff for sentencing in a burglary of a non-domestic premises is a starting point of 2 and a half years’ imprisonment.

15.  I was referred to the cases of HKSAR v Sim Ka Wing, CACC 450/2000, HKSAR v Cheung To Ming, CACC406/2005 and the district court case of HKSAR v See Chak Foon, DCCC139/2010. This line of authorities support the proposition that when a burglary is an opportunistic crime, subject to further aggravating or mitigating factors, a lower starting point then the guideline sentence can be imposed. The sentences imposed in those cases on appeal, in relation to the first 2 cases, were 2 years and 3 months, 12 months and 14 months’ imprisonment respectively.

16.  It is submitted by the legal representative of the defendant that this is such a case of opportunistic crime and that the sentence should reflect that fact accordingly.

Sentence

17.  I agree. I find that this is an opportunistic crime, with no evidence of premeditation. The defendant was a sneak thief who walked into an open construction site to steal whatever he could find. The defendant was of previously good character.  There are no aggravating factors in this case.

18.  Furthermore, I note that the case of Sim Ka Wing involved a breach of trust situation, and in the case of See Chak Foon, the defendant had 11 previous convictions, both being aggravating factors in those cases.

19.  Given the circumstances of our present case, the opportunistic nature of the burglary, the previously good character of the defendant and the line of authorities referred to me by Mr. Leung, I find that a proper starting point in this case is that of 18 months’ imprisonment. I will grant the defendant the full 1/3 discount for his guilty plea and sentence him to 12 months’ imprisonment.