HKSAR v. LAU KA FAI, COFFEE

DCCC 253/2019

[2019] HKDC 982

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 253 OF 2019

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to two charges of burglary, contrary to section 11 of the Theft Ordinance[1].

2.  Full particulars of the offences are set out in the facts admitted by the defendant today. 

Charge 1

3.  In July 2018 a residential premises situated at Room F on the 4th floor of Block 2, The Concord Building, No. 90 Soy Street in Mong Kok was being decorated.  The occupiers had moved out while the decoration work was undertaken.

4.  At around 12:00 p.m. on 21 July 2018 Mr Shu, the decoration worker, locked the main door and before leaving placed the door key in the doorbell cover.

5.  When Mr Shu returned at around 9:00 a.m. on 23 July 2018 the main door was unlocked and decoration equipment had been stolen.  Two hydraulic drills, one electric jigsaw, two electric screwdrivers; one electric grinder, one level machine and three recycle bags were missing. 

6.  The total value of the stolen property was $6,450. 

Charge 2

7.  In January this year the elderly home on the 2nd floor and 3rd floor of the Prince Commercial Building, Nos. 150-152 Prince Edward Road West in Mong Kok was under renovation.  There were no residents in the home during the renovation.

8.  At around 6:00 p.m. on 10 January Mr Cheung, the decoration worker, locked the doors and left.  At around 8:50 the next morning when Mr Cheung returned he found the door on the 3rd floor had been prized open.  Two hydraulic drills, six electric drills, three chargers and two batteries were missing.   

9.  The total value of the stolen property was around $20,000. 

10.  At about 8:56 p.m. the same day the defendant was intercepted and found in possession of one hydraulic drill, one electric drill and one charger stolen from the burglary of the elderly home. 

11.  Under caution and in a subsequent video recorded interview the defendant admitted, inter alia, that he committed the burglary of the elderly home; he saw no one inside and went in to steal renovation tools for sale as he had no money; he used a metal rod to prize open the door and that he had thrown away some of the tools which were faulty.

12.  CCTV captured the defendant entering the building at around 7:38 p.m. on 10 January carrying one bag and leaving the building the next morning at 1:34 a.m. carrying a few more bags.

13.  On 13 January the defendant was arrested for the burglary of Room F.  Under caution the defendant admitted, inter alia, that he committed the burglary because he had no money; he saw the premises were under renovation and no one lived inside; he knew renovation workers would usually place the key around the main door; and after finding the key he entered the premises and took some construction tools away. 

14.  CCTV captured the defendant going up the staircase of the building at around 8:21 a.m. on 23 July 2018 and going down the staircase at 8:28 a.m. carrying recycle bags.

Mitigation

15.  In passing sentence, I have carefully considered the oral and written submissions of Mr Lam, including that the defendant is suffering from diabetes and high blood pressure [2].

Starting point

16.  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 and for burglary of non-domestic premises the starting point is 2 years and 6 months’ imprisonment.

17.  Mr Lam submits lower starting points are appropriate because the premises were not occupied and the burglaries were opportunistic[3].

18.  I do not agree the burglaries were opportunistic. The defendant did not pass by an open door or vacant premises and stole food or items of little value[4].  The defendant was clearly looking for premises in which he could steal valuable decoration tools.  The decoration tools were valued at over $6,000 and around $20,000 respectively.  Furthermore, the defendant forced his way into the elderly home by prizing open the door. 

19.  Lower starting points have however been taken where domestic premises are vacant or under renovation[5].

20.  Room F being decorated and not occupied at the time, I am satisfied the appropriate starting point for charge 1 is 2 years and 6 months’ imprisonment.   

21.  The elderly home was in commercial premises.  Taking into account that there were no residents in the home at the time of the burglary I am satisfied the appropriate starting point for charge 2 is also 2 years and 6 months’ imprisonment.   

Aggravating features

Persistent offender

22.  The defendant has appeared in court on 13 occasions between 1979 and 2018 amassing a total of 24 convictions including seven for burglary.  I am satisfied the defendant is properly to be regarded as a persistent offender.

23.  The defendant last appeared in the District Court in August 2013 when he was sentenced to a total of 3 years and 10 months’ imprisonment having pleaded guilty to five burglaries[6].

24.  I was the sentencing judge.  The facts of the burglaries are very similar, the defendant burgling premises under renovation and stealing valuable decoration tools.  I enhanced the starting point for each burglary by 3 months by reason of the defendant’s persistent offending. 

25.  Clearly the sentence has not had a deterrent effect on the defendant.  I am satisfied an enhancement of 6 months is appropriate thereby increasing the starting point on each charge to 3 years’ imprisonment[7].

Commission of offences on bail.

26.  Part B of the criminal record reveals that the defendant committed the first burglary when he was on court bail for copyright offences[8]. Commission of offences on bail is an aggravating feature of sentence. 

27.  I have had the opportunity of reading the case papers.  The defendant was arrested on 23 May 2018 and brought to court the next day when he was granted bail to appear in court on 19 July 2018. 

28.  The defendant not only failed to attend court on that day but committed the first burglary on 23 July 2018.  The case papers reveal that the defendant was also on bail for other copyright offences[9].

29.  The defendant was rearrested on 25 July 2018 when he apparently reported to the police.  The defendant appeared in court the next day 26 July 2018 when he was sentenced to a total of 3 months’ imprisonment for the copyright offences.

30.  In the circumstances I enhance the starting point on charge 1 by a further 3 months to 3 years and 3 months’ imprisonment. 

31.  Giving the defendant full credit for his pleas of guilty reduces the sentence on charge 1 to 2 years and 2 months’ imprisonment and on charge 2 to 2 years’ imprisonment.

Co-operation

32.  Mr Lam submits that credit should be given to the defendant for his co-operation with the police in admitting charge 1 when there might not have been sufficient evidence to prove the charge[10].    

33.  Mr Yuen confirms that without the defendant’s confession there was no other evidence, the CCTV footage not showing the face of the defendant.

34.  In HKSAR v Ma Ming[11] the Court of Appeal held that the fact that a frank confession provides the only evidence which supports the charge did not entitle the defendant to a further discount over and above the one-third discount. 

35.  The Court of Appeal in HKSAR v Ngo Van Nam[12] reaffirmed the position that a judge was not obliged to give a discount over and above the one-third discount explaining that the mitigating factor of a confession was subsumed within the one-third discount.   

36.  The court in Ma Ming did however say that when considering the totality of the sentence a court, in exercising its discretion, can take into account the fact that the frank confession of a defendant provides the only evidence to support the charge. 

Totality

37.  Where the offences were committed in different premises against different victims on different dates consecutive sentences should be imposed.  Taking into account the defendant’s co-operation with the police I am satisfied a total sentence of 3 years’ imprisonment properly reflects the defendant’s criminality on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[13].  

Sentence

38.  The defendant is convicted and sentenced as follows:

Charge 1 – 2 years and 2 months’ imprisonment;

Charge 2 – 2 years’ imprisonment with 10 months consecutive and 14 months concurrent to charge 1;

The total sentence to be served by the defendant is 3 years’ imprisonment.