HKSAR v. YOUNG SEUNG CHAU

DCCC 905/2020

[2021] HKDC 356

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 905 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a single charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.  The particulars of offence aver that the defendant on 11 March 2020 in Hong Kong, having entered as trespasser part of a building stole therein one envelope containing cash HK$8,000 and one wallet containing cash of HK$2,000.

3.  In gist, this is a burglary case which took place in one residential premises.  According to the summary of facts which was agreed by the defendant, at the material time, madam Liu and her daughter lived at the offence location (hereinafter called “the Offence Location”).

4.  At about 1315 hours on 11 March 2020, madam Liu was alone in the Offence Location.  When madam Liu was about to leave for work, she opened the metal gate and the defendant suddenly appeared outside the Offence Location.

5.  The defendant told madam Liu that he had seen someone entering the Offence Location earlier and took away something. The defendant further asked madam Liu to conduct a check of her properties and the defendant also requested madam Liu to allow him to use the toilet in the Offence Location.

6.  Madam Liu acceded to the defendant’s request and allowed him to enter the Offence Location for the purpose of using the toilet.

7.  After entering the Offence Location, the defendant however did not go to the toilet but stayed in the sitting room. The defendant once again reminded madam Liu to check her properties as the defendant claimed that he had seen someone took away something from the Offence Location earlier.  Madam Liu believed in what the defendant said and proceeded to check her properties.

8.  Madam Liu had kept some cash in the drawer of a cabinet in her living room (hereinafter called “the drawer”):-

(a) Cash of HK$8,000 being kept in an envelope; and

(b) Cash of HK$2,000 being kept in her wallet.

9.  Madam Liu thus opened the drawer to have a check.  All the cash kept there was found to be remained there.  She then put the envelope and the wallet back into the drawer and prepared to close the drawer.

10.  At this juncture the defendant suddenly rushed into the living room and took the envelope and the wallet away from the drawer, after which he escaped from the Offence Location.

11.  Madam Liu chased after the defendant and shouted for help, and she saw that the defendant ran up the staircase at the lift lobby.  She then made a report to the police.

12.  While the defendant was escaping from the Offence Location, coincidentally madam Wong was returning to her abode and saw the defendant.

13.  On 23 March 2020, the defendant was intercepted and arrested by the police outside his abode.

14.  During the ID parade, madam Wong positively identified the defendant to be the male she encountered at the material time, and video-recorded interviews were subsequently taken with the defendant.

15.  Under caution the defendant denied that he had committed the present offence.

Criminal records and background of the defendant

16.  The defendant is now 55 years old, born in Hong Kong.  The defendant is the only child.  Both his parents have since passed away during the nineties.

17.  The defendant is educated to form 2 and has worked ever since leaving school.  He used to work as a medium-goods vehicle driver and have done so from 2013 to 2017, earning around $20,000 per month.  He has been unable to find work for the past 2 to 3 years.  He is not on social assistance and relies on his own savings for his daily expenses.

18.  He had been married but divorced over 20 years ago.  He had been cohabiting with his girlfriend for the past 4 years, having known her for over 10 years.

19.  Defendant is not of clear record, he has 14 previous convictions with 2 similar, 1 in 2009 and the last one in 2018 which was also his last conviction.

Mitigation

20.  In mitigation, Mr Lee emphasized the fact that the defendant had pleaded guilty to the offence at the earliest opportunity and is entitled to the full one-third discount.

21.  He further submitted that the defendant passed his time by the occasional playing of Mahjong, otherwise he mainly stays at home and has no bad habits or vices and is in good health.  He hopes to return to work as a driver.

22.  For the present offence, the defendant pleads guilty to one count of burglary, involving a domestic premises, and Mr Lee submitted that the tariff for this type of offence, with no aggravating or mitigating features, normally attract a term of imprisonment of three years as starting point.  See: HKSAR v Lau Pang [2004] 3 HKLRD 565.

23.  Mr Lee pointed out that the defendant had gained entry by deceiving the victim.  However as in HKSAR v Lui Yuen Shun CACC 322/2006, the court states at para. 11 that:-

“whether entry is gained to premises by sliding open a door or window or by a planned deception makes little difference”.

24.  Mr Lee submitted that there are no aggravating features in this instance, although the defendant is not of clear record, his record for similar offences is light and they were committed years apart and he is not a habitual burglar, he committed the offence by himself, no weapons or violence used, nor damage to the premises and the amount taken was not great.

25.  Mr Lee further submitted that the defendant is remorseful as shown by his guilty plea and has expressed this more fully in his own letter to the court.  He regrets his actions due to his own greed and in letting his girlfriend down.  He has since had time to reflect on his wrongdoing.  He is determined not to re-offend.  His sincere wish is to secure employment, and to continue to be with his girlfriend and support her.

26.  Mr Lee added that her girlfriend has remained in contact with the defendant and visits him regularly and is happy to get back together upon the defendant’s release.

Sentencing considerations

27.  As rightly pointed out by Mr Lee in mitigation, 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 also AG v Lui Kam Chi [1993] 1 HKC 215.

28.  I am aware that the defendant re-offended within 4 months after his release from prison for a similar offence.  However, I am also aware that in the present case the victim is not able to identify the defendant as the burglar, and the defendant still pleaded guilty to the charge and fully cooperated and admitted in the court that the money seized should be returned to the victim.

29.  My view is that the aforesaid cooperation of the defendant shows a genuine remorse of the defendant, and despite the fact that he had re-offended a similar offence, I am going to give him a last chance and will not enhance the sentence as a result of his criminal record. 

30.  Taking into account of what had been submitted on behalf of the defendant, and applying the case of Lui Kam Chi, I consider a starting point of 3 years’ imprisonment appropriate in the present case.  One-third discount is given to the defendant as he indicated his guilty plea at the earliest opportunity.  The sentence is therefore reduced to 2 years’ imprisonment.

31.  There being no further valid mitigating factors justifying further reduction in sentence, the defendant is sentenced to 2 years’ imprisonment.