HKSAR v. CHAN MAN LEUNG

DCCC 1277/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1277 OF 2011

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REASONS FOR SENTENCE

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1.  The defendant has admitted one count of burglary, contrary to Section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.  Facts admitted by the defendant disclose that a staff member of a shop known as Yue York at Shop No 2A, Ground Floor, Yau Kwong Building, No 418-430 Hennessy Road, Wanchai had locked the shutter of the shop, and the shop was left unattended from 10.50 pm on 31^st August, 2011.  The shop was installed with a CCTV system.  At about 6 am the following morning, ie 1 September, 2011, the shutter at the main entrance was found to have been lifted up completely.  A report was made to the police.  Upon checking, goods as set out in the particulars of charge, namely 5 glass bottles of ‘birds’ nest’ and 4 bottles of ‘caterpillar fungus’ valued at HK$1,104,000.00 were found to be missing – these had been left on a wardrobe at the far end of the shop.  The owner provided the disc from the CCTV system which had captured the situation inside the shop at the material time to the police.  The CCTV footage showed that the burglary took place between 4.17 am and 4.19 am on 1 September, 2011, in slightly more than one minute.  Two culprits, each wearing baseball caps and gloves, had lifted up the shutter at the front entrance of the shop. They had walked into the shop and climbed onto the glass panel of the cabinet at the end of the shop and removed the bottles of ‘birds’ nest’ and ‘caterpillar fungus’ from the wardrobe, put the bottles into plastic bags they had brought to the shop and then the two fled together.  The defendant was arrested by police on the day following the burglary, ie on 2 September, 2011.  He denied the offence under caution and claimed he had been sleeping at the material time.  Photographs had been taken of him after his arrest, and upon a body search, an Octopus card registered in the defendant’s name was found.  A comparison was done of the photographs of the defendant taken upon his arrest to the images of the burglars captured on the CCTV footage and it was found that the facial appearance, haircut and shape of the head of the defendant matched that of one of the burglars.  The quality of the CCTV footage was good enough for the police to observe what the burglar was wearing at the material time – a light t-shirt with a pattern on the front and a baseball cap.  Two baseball caps and a pair of plain sports shoes were seized from the defendant’s residence during the house search.  The record of the Octopus card disclosed it had been used at about 12.31 a.m. and at 6.20 a.m. on 1 September, 2011 at a 7-11 Convenience Shop in Kweilin Street in Shamshuipo.  The disc of the CCTV system of the 7-11 Convenience Shop for the material time was seized by the police, and upon viewing, it was observed that the images of the two males captured on the CCTV footage from the 7-11 Convenience Shop at 12.31 am and 6.20 am matched the burglars, and matched the photographs of the defendant taken upon his arrest.  A comparison was conducted of the footwear marks obtained from the surface of the glass panel in the shop and the pair of sports shoes seized from the defendant’s residence, which he had admitted were his shoes.  It was found that the pattern found on the glass panel matched that of the right shoe of the pair of sports shoes seized from the defendant’s residence.  I was satisfied beyond all reasonable doubt that the defendant was one of the two burglars whose image was captured on the CCTV footage of the Yue York Shop between 4.17 am and 4.19 am on 1 September, 2011 and accordingly, I convicted him of the charge that he faced.

3.  Counsel on behalf of the defendant submitted that the defendant was extremely remorseful as reflected by his plea and sought leniency.

4.  The defendant is now aged 49 years, born in Hong Kong.  He has attained Primary 4 education. He had worked as a decoration worker after leaving school, assisting his father for many years.  His father, who is now aged 80 years, retired over 6 years ago, and the defendant has been mostly unemployed since.  His mother is aged 78 years.  He suffers from heart disease and diabetes. He is single, but he lives with his girlfriend.

5.  He has 29 previous convictions in 15 court appearances.  Of these, 12 are for burglary offences, and 11 are dishonesty related.  His criminal record dates back to 1979, and his first conviction for burglary was in 1980.  His most recent conviction was on 19 August, 2010, when he was sentenced to 2 years’ imprisonment for an offence of burglary.  He was discharged from prison on 22 June, 2011, and the present offence was committed less than 3 months after his release from prison.

6.  I have carefully considered all that has been submitted in mitigation by counsel on behalf of the defendant.   

7.  It is well established that the proper starting point in a case of burglary of non-domestic premises in the absence of aggravating or mitigating factors for an adult offender of clear record is 2 years and 6 months’ imprisonment: R v Wong Man [1993] 1 HKC 80 and Secretary for Justice v Tsang Hon-yin AR 5/2004.

8.  In HKSAR v. Fan Kit Hung,  CACC 62/2009 (unreported), McMahon J., in giving the judgment of the Court, said :-

“7. ………From those cases and others we were referred to during argument it is apparent that there is an increasing appreciation of the need for deterrent sentences for offenders who are professional or serial burglars.

8. So far as sentence is concerned, much will depend on the aggravating circumstances of the individual case. However where the facts reveal the offender to be a professional burglar then that is plainly an aggravating factor and, where several offences are also involved, the totality of sentence would, depending on other factors, often reflect a notional starting point of more than 5 years’ imprisonment.

9. Those other factors were illustrated in Cheng Wai Kai (HKSAR v. Cheng Wai kai, unreported, CACC 338/2007) by Yeung JA at paragraph 15 where he said :

“ The starting point can be adjusted upwards if there are aggravating circumstances such as : (1) the offence is carefully planned and skillfully executed involving the use of heavy instruments or equipment; (2) the offence is committed by two or more people; (3) the offence targets substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous convictions of a similar nature, and (6) the offender commits multiple offences.”

9.  While it is true that the defendant did not use any heavy instruments or equipment, clearly there was careful planning and skill in the execution of the burglary.  The burglary took a little over a minute to be completed, and the burglars went straight into the back of the shop where they climbed onto the glass panel of the cabinet at the end of the shop and removed the 9 bottles of ‘birds’ nest’ and ‘caterpillar fungus’ from the wardrobe, put the bottles into plastic bags they had brought to the shop and then the two burglars fled together.  The defendant did not act alone – he was with another person in committing the burglary.  The properties stolen was of substantial value - HK$1,104,000.00. The defendant can be viewed as a professional burglar – he is a repeat offender, and of his 29 previous convictions, 12 are for burglary offences.

10.  I find that there are aggravating circumstances warranting an upward adjustment of the starting point.  Save for the defendant’s plea of guilty, there is little mitigation of weight before me which would warrant any further reduction in sentence.

11.  Having considered all that had been urged upon me, in my view the appropriate starting point is one of 3 1/2 years’ imprisonment on the charge.  He is entitled to the usual one-third discount for his plea and is sentenced to 28 months’ imprisonment.

12.  I would also add this – in my view the police here are to be commended for their thorough investigation in this matter which brought about the speedy arrest of the defendant herein.