IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 443 OF 2013
Transcript of the Audio Recording
of the Sentence in the above Case
COURT: I have no doubt that of course things took a very different turn in the course of this burglary than you ever expected or intended.This burglary had dreadful consequences and that is something that you are going to have to know; although it was not your intention,you were involved in what happened and caused those consequences.
The gravamen of your conduct is that you and the 1st accused had, a little earlier that afternoon, shared some dangerous drugs. Thetwo of you had agreed to go off and see if there were premises where the doors were left apparently unlocked. You went down fromthe 1st accused’s flat, looking for suitable premises. It had apparently been pre-agreed between you that you were going to bethe lookout man whilst the 1st accused was going to be the person who entered the flat and did the actual stealing.
When you got to the 18th floor, you found the door and metal gate of Flat 1807 unfastened. At that stage, your plan swung into actionwith you going, apparently, along to the lift lobby to act as a lookout there to alert the 1st accused if anyone arrived.
The 1st accused went into the flat. The facts, which you have agreed, say that, shortly thereafter, you heard sounds of fighting insideRoom 1807 and, not being a very brave lookout, you then ran off. Certainly, the evidence that we heard during the trial seems tocoincide with the Agreed Facts because we were told that, thereafter, when the 1st accused had finished assaulting both the old ladyand her husband who returned home a little later, he came out of the premises and found you to be missing. He went up to his roomon the 21st floor and found you there.
When he returned and left the items that he had taken from the elderly couple, the two of you went off to Mongkok where you receivedan amount of $800 from the 1st accused as reward for having, I suppose, agreed to act as a lookout.
You do have previous criminal convictions but two of those were in the 1980s and the last one was, in any event, eight years ago.You have twice been fined and once been subjected to probation. Certainly, your record does not aggravate the sentence in this matterin any manner at all.
I also have to accept, the way the evidence has turned out and the way you have been charged, that it is recognised that you did notassociate yourself with the conduct of the 1st accused in going so far as he did. It also seems clear to me – and this is a matterI should take into account because, to some extent, it is in your favour – that it did seem from the evidence we heard during thetrial that the prime-mover of this was the 1st accused.
That said, you are a mature man of some 50 years and there is no doubt in my mind that if you went looking for premises where thedoor had been left unlocked, you must have realised that there was a real risk that there would be a person or persons inside thosepremises. Despite that, you were still prepared to go ahead with the burglary and let your companion go into those premises.
It seems to me that you must have appreciated that this could well turn out not to be a simple walk-in burglary but could be a mattermore serious. That I regard as a feature which does aggravate the sentence. The second aggravating features is that there were twoof you involved in this burglary even if your role was that of the lookout.
The usual starting point for burglary of domestic premises is one of 3 years absent any aggravating features; that is 3 years aftertrial. In this matter, you have pleaded guilty and you indicated your willingness to do so at a very early opportunity. That seemsto me to be the only mitigation that is available to you.
I should also have regard to the sentence that was imposed on the 1st accused in regard to the robbery offence to ensure that thesentence that is imposed on you is proportionate to his culpability. In the circumstances, I regard the appropriate starting pointafter trial as one of 4 years imprisonment which falls to be reduced by the one-third discount for your plea.
The consequence is you are to serve 2 years and 8 months imprisonment.