HKSAR v. TSE WING FAI

DCCC 81/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 81 OF 2015

____________

HKSAR
v
TSE Wing-fai
____________

Before : H.H. Judge G. Lam

Date : 9 March 2015

Present : Ms. Lily YIP, PP, of the Department of Justice, for HKSAR.
Mr. Simon SI of M/s Simon Si & Co., assigned by the Director of Legal Aid, for the defendant.

Offence : Burglary(入屋犯法)

REASONS FOR SENTENCE

1.The defendant pleaded guilty to a charge of “Burglary”. The burgled premises are a residential unit located at Sham Shui Po.

Summary of Facts

2. Mr. TANG (PW1) resides on the 8th Floor of a building situated at Yee Kuk Street, Sham Shui Po. About 6:45 pm on 4 December 2014, whilst standing on the balcony ofhis home, PW1 saw the defendant acting furtively on the roof of the opposite building (namely No.142A Yee Kuk Street). He saw thedefendant climbing down from the roof and entering into Room A, 5th Floor, No.142A Yee Kuk Street (“the Flat”) through an open window. Thereafter, light emitted from a flashlight inside the Flat,which was previously dark.

3. About 10 minutes later, the defendant climbed out of the Flat through the same window and went up to the roof. He then walked tothe roof of the adjacent building (namely Nos.138-140 Yee Kuk Street) and went downstairs. In the meantime, PW1 alerted the Police. Police officers intercepted the defendant at the staircase on the 1st Floor of Nos.138-140 Yee Kuk Street.

4. Upon search, a digital camera, a watch and 2 necklaces were found in the defendant’s front trouser pocket. The defendant led thearresting officer to the roof and pointed out the Flat which he had just burgled. He admitted under caution that he had stolen theproperties found in his trouser pocket because he did not have money for meals.

5. In his video-recorded interview, the defendant gave a detailed account as to how he burgled the Flat. He claimed that the onlytool he used was a flashlight.

6. Tenant of the Flat (Mr. LEUNG) later confirmed that the properties found on the defendant were originally placed inside a shelfin the living room. Their total value is $25,500.

Mitigation & Sentence

7. The defendant is now 42. He has 15 conviction records which include 4 “Burglary” offences (2 in the same case in 2005 and 2 inthe same case in 2009), 1 “Theft” offence and numerous drug-related offences. He was last sentenced to prison in April 2014 (fora drug-related offence) for 4 months. He was released in August 2014.

8. Defence lawyer Mr. SI informed me that the defendant is divorced with a son (aged 23), but he resides alone. The defendant cameto Hong Kong from the mainland in 1985. He has been unemployed for 4 years and lives on social welfare ($2,000 per month). Mr.SI submitted that on the day of the offence, the defendant had used up his money on drugs, and thus had no money to buy food. Mr.SI stressed that all stolen properties were recovered and the victim was not in the Flat when the burglary took place. The defendanthas been cooperative with the Police throughout; no tools or weapons were found on him.

9. Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigatingfactor for committing a crime. There is sufficient social welfare protection in modern Hong Kong for the poor to meet their basicneeds. Being a released prisoner, the defendant must have known how to seek help. In the present case, the defendant only has himselfto blame. He spent his money on drugs instead of food. Feeling hungry is most definitely not an excuse to steal.

10. The normal starting point for domestic burglary is 3 years’ imprisonment. The defendant is no stranger to “Burglary”; he had committedthe offence in pairs twice. Furthermore, he committed the present offence in just 4 months after being released from prison. Ihave all the reasons to raise the starting point as deterrence.[1] On the other hand, I note that his last “Burglary” conviction took place in 2009. I will show mercy by not increasing the startingpoint.

11. Mr. SI has done all he could to mitigate on behalf of the defendant. I will adopt the usual starting point of 3 years’ imprisonment. A one-third discount is given for the guilty plea, reducing the sentence to 2 years. Apart from this, I see no other mitigatingfactors which warrant any further discount. I sentence the defendant to 2 years’ imprisonment.

(G. Lam)
District Judge


[1] In HKSAR v CHENG Wai Kai CACC 338/2007, Yeung JA (as he then was) held “The starting point [for burglary of non-domestic premises] can be adjusted upwards if there are aggravating circumstances such as… (5) the offender has previous convictions, particularly previous convictions of similar nature; and…” (at para.15)