HKSAR v. NGUYEN CONG-QUY

DCCC 596/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 596 OF 2009

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to four charges of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Chapter 210.

2.  Full particulars of the offences are set out in the admitted facts.  Briefly in the early hours of the 2nd May this year the defendant burgled four commercial premises, one in the Chai Wan Industrial Centre and three in the Fortune Factory Building.  Access to both buildings was by way of a common podium at the 4/F level of the buildings.

3.   The defendant stole three screwdrivers, four spanners and an iron pipe from Defond Electrical Industries Limited (charge 1); $5,300 and ¥1000 Renminbi from the National Pharmaceutical Company Limited (charge 2); $2,000 cash from Chieh Hing Bindery Company (charge 3) and $1,100 cash from Peak Eye Offset Printing Limited (charge 4).

4.  The defendant was arrested at 5:16 a.m. when seen acting suspiciously near the location of the four burglaries.  The defendant admitted that cash found on him was stolen from a factory building.  The defendant then led the police to the podium and admitted he climbed up to the 5th floor where he prized open the window of Defond Electrical Industries Limited.  The defendant further admitted three other burglaries but said he did not steal anything from two of the premises.

5.  The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is two years and six months imprisonment.  Where the defendant has committed more than one offence of a similar nature at different times a higher sentence than if there had been only one offence is appropriate (see Attorney General v LUI Kam-chi [1993] 1 HKC 215 as applied in Attorney General v LO Ching-fai [1996] 2 HKCLR 20).

6.  Mr Lai submits this is a case of an opportunistic burglar, similar to that of a sneak thief and therefore asks that I lower the starting point (see paragraph 5 of Mr Lai’s written submission).  Whilst I accept a lower starting point can be taken where the burglary is opportunistic  (see HKSAR v SIM Ka-wing CACC 450/2000 as applied in HKSAR v YEUNG Kwok-sang CACC 4/2006 and HKSAR v CHEUNG To-ming [2006] 2 HKLRD 259,the case cited by Mr Lai) I have no hesitation in rejecting this submission.  Having seen the photographs of the location I do not accept this is a case akin to that of a sneak thief.  

7.  What the cases all make clear is that an opportunistic burglary is where the thief walks into an open office to steal.  The defendant climbed over iron railings to access the podium and then climbed the outside of the buildings to gain access to three of the premises on the 5th and 6th floors.  This is not a case of the defendant walking into open premises.  This was a determined thief who was prepared to break into as many premises as possible to find money to feed his drug habit.

8.    The defendant is properly regarded as a persistent offender having ten previous convictions for burglary and numerous other convictions for offences of dishonesty (see HKSAR v CHAN Pui-chi [1999] 2 HKLRD 830). 

9.  In passing sentence I have carefully considered everything said on the defendant’s behalf by Mr Lai, including that the defendant was cooperative with the police.   

10. I am satisfied the proper starting point after trial for each burglary is 2 years and 6 months imprisonment which I increase by 6 months to    3 years imprisonment by reason of the defendant being a persistent offender.  Taking into account that the burglaries were all committed on the same morning and not on different dates I am satisfied an overall starting point of 4 years imprisonment is appropriate. 

11. Giving the defendant full credit for his pleas of guilty he is sentenced as follows:

Charge 1 – 2 years imprisonment;

Charge 2 – 2 years imprisonment

4 months consecutive and 20 months concurrent to charge 1;

Charge 3 – 2 years imprisonment

2 months consecutive and 22 months concurrent to charges 1 & 2; and

Charge 4 – 2 years imprisonment

2 months consecutive and 22 months concurrent to charges 1, 2 & 3;

This makes a total sentence of 2 years and 8 months imprisonment which I am satisfied properly reflects the defendant’s criminality on these four charges.