HKSAR v. LAM WING SING

DCCC 453/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 453OF 2013

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Reasons for Sentence

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Charges

1.  The defendant pleads guilty to the following charges:

(1) Burglary of a flat on a day unknown in August 2012 (1^st charge);

(2) Burglary of the same flat on about 3^rd October 2012 (2^nd charge);

(3) Going equipped for stealing targeting the same flat on 7^th October 2012 (3^rd charge).

Facts

Background

2.  It is a significant fact that the defendant had been virtually free from suspicion for a couple of months until maybe an hour before his arrest at about 0350 h on 7 October 2012. 

3.  To start with, the defendant and Mr YIP (PW1) were classmates and friends.  PW1 lived in a flat in Mei Tin Estate, Shatin, N.T.  Sometimes the defendant would visit PW1 and stay there overnight.  There was only one bedroom.  PW1’s mother Madam YIP (PW2) used to place the key to the door on the floor space between the door and the iron gate for the convenience of PW1 since about June 2012.  The iron gate would not be locked.  On a day in July 2012, the defendant saw PW1 pick up the door key there and they entered the flat with it. 

1^st charge

4.  On a day unknown in August 2012, PW1 found $3,000 missing from a box inside the drawer of a cabinet in the bedroom.  It transpired from the defendant’s own admission to the police that he had picked up and used the door key to enter the flat with Ah Fai, a wanted person, to steal the money.

2^nd charge

5.  After the loss of $3,000, PW1 and PW2 decided not to leave the door key there.   On 1^st October 2012, the defendant and PW1 went to Shenzhen together for massage.  On a subsequent date in October 2012, PW2 lost a Gucci handbag, valued at about $5,000, placed in a cabinet above the bed in the flat.  A subsequent search of the defendant’s home yielded a receipt dated 3 October 2012 issued by Milan Station for the defendant’s sale of the Gucci handbag at $1,400.  As subsequently explained by the defendant’s admission to the police, on that occasion in Shenzhen PW1 had kept the keys to the door and the iron gate in a cabinet while asleep in the massage parlour.  He took the 2 keys to the street stall and duplicated them.  He then secretly returned the 2 keys to the cabinet.  He later used the 2 keys to enter the flat to steal the Gucci bag.    

3^rd charge and revelation of offences

6.  At 0051 h on 7 October 2012, PW1 was drinking with a friend Mr YU (PW3) in Mongkok.  There was a telephone conversation between PW1 and the defendant.  PW1 asked the defendant to join them but he would not join them.  At 0210 h, he pressed the door bell of the flat.  PW2 opened the door.  He claimed to look for PW1.  PW2 told him that PW1 was not at home.  PW2 phoned to tell PW1 that he had just looked for PW1.  PW1 felt strange.  PW1 and PW3 returned to the flat and phoned him up.  He said he was nearby.  They went down and saw him in the shopping centre of the estate.  PW1 asked him why he had gone up to the flat.  He said he was looking for a place to sleep. 

7.  PW1 questioned him about the $3,000 and the Gucci handbag missing from the flat.  He made some admissions.  The police were informed and arrived soon.  Upon investigation and interview under caution the sum total of his admissions was that he had used the key placed on the floor space by PW2 to enter the flat to steal the money with the wanted person; he acted as the lookout.  He had duplicated the 2 keys of PW1 in Shenzhen.  He had entered the flat to steal the Gucci handbag; the wanted person acted as the lookout.  He had later sold the handbag to Milan Station at $1,400 and already spent his share of $400.    

8.  The police found on him 2 skeleton keys said to be bought from a man in Mongkok in late September 2012 at $400.  The 2 keys could unlock the door and the iron gate of the flat.  I am told by his solicitor in mitigation that this claimed provenance of the 2 keys was a lie.  They were actually duplicated by him in a street stall in Shenzhen. 

Defendant’s personal background and mitigation

9.  The defendant is 19 years of age, a F. 6 student. He has a clear record.  He was talented in Chinese declamation but failed to maintain his overall academic interest.  His bad peers in class ill-affected his conduct and led him awry.  His parents failed to guide him back to the right track.  His family lives on comprehensive social security.  The family is on a tight budget.  He committed the present offences to raise money for his friend’s legal fees.  He kept $400 out of the proceeds of over $4,000. 

10.  The Training Centre Report finds him suitable for detention. 

Sentencing considerations

11.  Section 109A of the Criminal Procedure Ordinance, Cap. 221, provides:

(1) No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.

(1A) This section shall not apply to a person who has been convicted of any offence which is declared to be an excepted offence by Schedule 3.

12.  The offences of burglary and going equipped for stealing are not declared to be excepted offences by Schedule 3.  It means that the court shall consider imprisonment as a last resort.    

13.  The Court of Appeal has laid down guidelines in sentencing an adult first-time burglar of residential premises.  The sentence shall be 3 years in the absence of aggravating factors (Attorney General v Lui Kam-chi [1993] 1 HKC 215; HKSAR v Lau Pang [2004] 3 HKLRD 565).

14.  The defendant’s solicitor, Mr Mok, refers me to a number of authorities adopting the said sentencing guidelines as mainly examples of overlapping sentences for multiple burglaries and assorted offences.    

Sentencing this defendant

15.  I shall pass a sentence of not less than 3 years if a prison term has to be imposed.  He does not appear to be bad in character but he can be going down the drain fast if not thwarted.  Considering that he is not incorrigible and befit the interest of himself and the society to have him reformed in the Training Centre, I shall so order for each charge concurrently.