HKSAR v. LAU YUN KEUNG

DCCC 235/2019

[2019] HKDC 1383

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 235 OF 2019

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REASONS FOR SENTENCE

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Introduction

1.  The defendant is convicted upon his own plea of the charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance.

Facts

2.  At the material time, PW1 to PW6 were proprietors operating their respective fish stalls (the “Fish Stalls”) at Luen Wo Hui Market, No. 6 Wo Mun Street, Fanling, New Territories (the “Market”).  The Fish Stalls were all located inside the Market on the ground floor and were not completely enclosed with walls or fences and doors.

3.  At about 11:00 pm on 6 January 2019, the Market was closed and the entrance to the Market was locked, preventing members of the public from entering the Market.

4.  At about 11:51 pm that night, CCTVs installed inside the Market captured the defendant and another unknown male enter the Market.  At the time, the defendant was wearing a face mask and a jacket marked with “5” on the left sleeve (the “Jacket”).  At about 11:54 pm on the same day, the unknown male left the Market while the defendant stayed and was seen approaching and rummaging through various stalls including the Fish Stalls.  At about 2:32 am on 7 January 2019, CCTVs captured the defendant leaving the Market through the rear entrance and taking with him a trolley loaded with one plastic box, one plastic cabinet and a polyfoam box.

5.  At about 3:30 am on 7 January 2019, PW2 returned to his fish stall and found signs of ransacking.  Upon checking, he found that one plastic box, one basket and cash of about $3,000 originally kept in a polyfoam box had gone missing.

6.  At about 6:00 am on the same day, PW3 returned to her fish stall and found that a locked cabinet there had been prized opened.  Upon checking, she found cash of about $5,100 originally kept in the locked cabinet and a trolley (worth $200) missing from her stall.

7.  At about the same time, PW5 returned to his fish stall and found cash of about $3,000 originally kept in a polyfoam box and a plastic container had gone missing from his stall.

8.  At about 6:30 am on the same day, PW1 returned to his fish stall and found a locked drawer being prized open.  Upon checking, PW1 found that cash of about $6,100 originally kept in the locked drawer had gone missing.

9.  At about 7:00 am on the same day, PW6 returned to her fish stall and found cash of about $1,500 originally kept in a polyfoam box missing.

10.  At about 7:30 am on the same day, PW4 returned to his fish stall and found a plastic cabinet which contained two sets of black-coloured clothing and cash of about HK$150, a vacuum flask and a mobile phone with a SIM card all went missing.

11.  A report was made to the police.

12.  Later that day, police located the defendant near Luen Fat Street, Fanling and arrested him.  The defendant was taken back to Mercy Grace’s Home, Ground Floor, Nos. 14-16 Luen Fat Street, Fanling (the “Home”) where he resided.  Upon search of the space occupied by him at the Home, namely, Bed No. 20, the police recovered a vacuum flask and a mobile phone from a drawer of his bed.  The vacuum flask and the mobile phone were subsequently shown to and identified by PW4 as his missing property stolen from his fish stall.  The police also found and seized cash of $1,059 and the Jacket from Bed No. 20.

13.  In a cautioned video recorded interview, the defendant admitted that he had entered Luen Wo Hui Market with his friend ‘Ah Ming’ at about 11:20 pm on 6 January 2019.

Previous conviction record and antecedent

14.  Prior to the commission of the present offence, the defendant had 38 previous convictions resulting from 23 court cases from 1993 to 2018.  Out of those 38 previous convictions, there were 17 counts of theft, 5 counts of attempted theft, 3 counts of burglary and 1 count of attempted burglary.

15.  The defendant was born in August 1976 and is now 43 years old. He received education up to Form 3 level.

16.  Prior to the present plea and sentence hearing, a number of psychiatric reports were obtained.  The last two psychiatric reports respectively dated 6 and 16 August 2019 opined that the defendant had drug-induced psychosis with polysubstance abuse and dissocial personality and that inpatient treatment was not necessary.

Mitigation

17.  In the written “Mitigation Submissions” signed by the defendant’s counsel Mr Hui, it was stated inter alia that:-

(i) the starting point for non-domestic burglary is 2½ years imprisonment;

(ii) the defendant has a history of mental illness since 2014 and was diagnosed to have polysubstance misuse, drug-induced psychosis and dissocial personality disorder;

(iii) the defendant went into the Market under the influence of drugs and alcohol together with a friend “Ah Ming”;

(iv) the defendant only took the vacuum flask and mobile phone away while Ah Ming took the other items mentioned in the Particulars of Offence; and

(v) the defendant indicated his guilty plea at the earliest opportunity.

Sentence

18.  In R v Wong Man [1993] 1 HKC 80, the Court of Appeal says the proper starting point for burglary on non-domestic premises is 30 months’ imprisonment for a first offender of full age.  I will adopt a starting point of 30 months’ imprisonment for the present case.

19.  In light of the defendant’s previous convictions of dishonesty related offences, I will enhance the sentence by 3 months.

20.  I will then give 1/3 discount to the defendant for his timely indication of guilty plea.  The sentence is therefore reduced from 33 months to 22 months’ imprisonment.

21.  There being no further valid mitigating factors justifying further reduction in sentence, the defendant is sentenced to 22 months’ imprisonment.