HKSAR v. LEE HUNG FAT

DCCC 769/2021

[2022] HKDC 328

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 769 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 2 charges of burglary.

2.  Both incidents occurred at the Knowles Building, the University of Hong Kong, Pokfulam. Only the University staff and the university students have accessed to the 9^th floor and the 6^th floor respectively.

3.  Charge 1 occurred on the 9^th floor while Charge 2 occurred on the 6^th floor of the Knowles Building.

4.  At 5 pm on 21 April 2021, PW1 left his iPad ($4,800)  on his desk on the 9^th floor of the building.  When he returned to the office next morning, he found his iPad was missing. (Charge 1)

5.  At 12:50 am, on 22 April, 2021, PW2 left her MacBook together with the computer case and the charger (altogether $18,130)  inside the drawer of her desk on the 6^th floor of the Building.  When she returned at 10 am on the same day, she found those items were missing. (Charge 2)

6.  CCTV captured the incidents on 22 April 2021:-

(a)  The defendant entered the Knowles Building twice,

(i)  Entered at 12:26 am and left at 12:37 am.

(ii)  Entered at 3:45 am and left at 4:05 am. He carried a gold color paper bag and wore a pair of blue slippers.

(iii)  At 3:57 am, he appeared in front of PW2’s desk for about 2 minutes.

(b)  Each time when he left, he went to Hui Oi-Chow Science Building of the university.

7.  Subsequently, a pair of blue slippers and a golden paper bag were found hidden in the ceiling inside a washroom in Hui Oi-Chow Science Building.

8.  The defendant was arrested on 3 June 2021.

9.  The defendant admitted under caution that he stole and sold those items. He also hid the pair of blue slippers and the golden bag in the ceiling of Hui Oi Chow Science Building.

Criminal record

10.  The defendant has a long list of criminal record since 1993. There were altogether 17 court appearances with 64 convictions with various offences:-

(a)  Theft - 14 convictions

(in 1993, 1995, 2005, 2007, 2009, 2011 and 2012)

(b)  Criminal damage

(c)  Dangerous drugs offences

(d)  Indecency in public

(e)  Loitering

(f)  Burglary – 15 times, last conviction was in 2018 for DCCC 631/2018. He was sentenced to 22 months’ imprisonment. He was discharged from prison in December, 2019.

Mitigation

11.  He is 45 years of age.  He committed the previous offences due to his drug problems.

12.  Since his last discharge from prison in December 2019, he determined to turn over a new leave and stayed away from his undesirable friends.  He found himself a job, joined the church and participated in volunteer works during his spare time.

13.  However, due to the onset of the pandemic, he lost his job.  He started to incur debts.

14.  He committed the present offence due to financial pressure and mental stress.

15.  During his current remand, he lost his uncle of whom he had a close relationship with him.

16.  In addition to the mitigation letters filed to this Court earlier, the defence submitted further letters today from the defendant and Father Wotherspoon to tell me that the defendant has been a drug addict for over 20 years. He was previously a successful estate agent, earning huge commission, but he lost it all to dangerous drugs.

17.  The defendant met Father Wotherspoon who has a good influence on him. The defendant understands that he has to become a good person and to lead a meaningful life.

18.  It hurts him deeply that he lost his uncle during his current remand.

Sentence

19.  It is well settled that for non-domestic burglary, the starting point is 30 months.

20.  I have the opportunity to read the reason of sentence of DCCC 631/2018 of which the defendant also committed burglary by stealing a MacBook in the Knowles Building of the University of Hong Kong.

21.  In the present case, the defendant returned to Knowles Building to steal iPad and MacBook again.  I consider that this is an aggravating factor.

22.  Clearly the defendant knows his way into the buildings and he also knows that there are staff and students to leave their computers, iPad and MacBook inside the building.

23.  The defendant also knows that these items have resell value and they can be disposed of easily.

24.  However, the iPad and MacBook contained works and study information belonged to PW1 and PW2.

25.  The loss of these items must have caused them great inconvenience and anxiety.

26.  The defendant knows the layout of the two buildings in question, he hid his belongings, i.e. the slipper and the golden bag, in the ceiling of the washroom to facilitate himself to steal those items.  It all goes to show that the defendant planned to burgle into Knowles Building and it was premediated.

27.  He is only 45, but he has a long list of conviction records.

28.  There is no doubt that he is a persistence offender.  Those previous sentences have no deterrent effect on him.

29.  All of the above are considered as aggravating factors.

30.  The principle relating to the sentencing of persistent offenders were set out in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830.  That decision makes it clear that for a persistent offender there is the need to both provide the defendant with additional deterrence and also to protect the society from him.

31.  The defence urged this Court to adopt the previous sentence in DCCC 631/2019 by enhancing 3 months.

32.  I disagree.  The defendant has 64 convictions with 15 offences of burglary and 14 offences of theft.

33.  In HKSAR v Lui Yuen Shun CACC 160/2016, the applicant was 41, in similar age to the defendant before me, he pleaded guilty to 2 charges of domestic burglary, the sentencing judge adopted a starting point of 36 months for each charge, having considered the applicant’s antecedents and his evident recidivism, the sentencing judge enhanced the starting point to 45 months for each charge in view of his appalling criminal record. That was 33 convictions with 23 offences related to dishonesty.  

34.  The sentence was reduced to 32 months for each charge, the sentencing judge order 20 months from charge 2 to run consecutively to charge 1, it arrived at a total of 52 months.

35.  On appeal, the sentence of 52 months was upheld.

36.  To this extend, I consider a starting point of 30 months for each charge is appropriate, it is necessary to adjust upward for another 9 months.  It arrives at 39 months for each charge, reduce to 26 months after 1/3 discount.

37.  I also consider that these 2 charges are two separate and distinct offences as they took place at 2 different locations at 2 different times.

38.  In HKSAR v Lau Hiu Man [2013] HKCU 706 that the appellant went into the same unit twice within a matter of minutes, the Court of Appeal upheld that the 2 burglary charges were separate and distinct offences.

39.  Against this background, I order 10 months from Charge 2 to run consecutively to Charge 1.

40.  To this end, I impose the following sentence for the 2 charges: -

Charge 1: 2 years 2 months

Charge 2: 2 years 2 months, I order 10 months from charge 2 to run consecutively to Charge 1.

The total sentence is 3 years.

Reduction of sentence?

41.  I now come to deal with the letter from Father Wotherspoon.

The instructing solicitor had received the letter in the middle of March, but only sent it to the defence counsel yesterday. The mitigating letter is subsequently bringing to my attention at the end of the mitigation this morning.

42.   In Father Wotherspoon’s letter , the last paragraph stated that “for his participation in my anti-drug campaign, I humbly ask the Court to grant the defendant a reduction of three months as allowed by the Court of Appeal.”

43.  When asked about the Court of Appeal case, the defence has no idea which case Father Wotherspoon was referring to. Clearly, the defence has not read the letter in details. If the defence did, they simple did not bother to find out which case it was.

44.  It all goes to show the preparation work which had been done for the defendant.

45.  It is obvious to the defendant that this letter must have some mitigation value to him as Father Wotherspoon said that the Court of Appeal has granted a 3 months’ reduction in an appeal case.

46.  In the defendant’s mind, he clearly is expecting a further deduction of sentence as he has participated in Father Wotherspoon’s campaign.

47.  The defendant’s participation was by posting 2 letters in Father Wotherspoon’s website to inform others of his journey as a drug addict for the last 20 years. The defendant also participates in the sharing sessions with other inmates on every Sunday for the past 6 months.

48.  After a short adjournment, the defence found an appeal case HKSAR v Castillo Caicedo Teresa [2022] HKCA 82 regarding an appellant who was a Venezuelan, trafficking dangerous drugs to Hong Kong.  She has participated in Father Wotherspoon’s campaign and had a letter of mitigation from him.

49.   In paragraph 60 of the judgement, the Court of Appeal said that “in sentencing drug trafficking cases, a defendant’s participation in Father Wotherspoon’s campaign is discretionary as to whether not to accord any reduction to a sentence. The granting of a reduction and the extend of it will be dependent on an assessment of the nature and scope of the participation by the defendant. Even then only a “token” reduction may be given.”

50.  In the present case, the defendant is facing 2 charges of burglary, not drug trafficking charges.

51.  The defence said that the defendant was previously a drug addict and committed the previous offences to feed his drug problems. The commission of the current offences was due to financial hardship as he was released from prison in December, 2019 and met with the onset of the pandemic in 2020.

52.  As often said in many cases, financial hardship cannot be regarded as a mitigating factor.

53.  The defence further advanced in his mitigation that the defendant’s contribution to Father Wotherspoon’s campaign is evidence of “positive good character.”

54.  In paragraph 73 of the judgement in Castillo Caicedo Teresa’s case, it said that “positive good character” is something more than mere absence of a criminal record, being particular behavior, usually unrelated to the crime itself, which has been of “benefit to the community”

55.  There is nothing to substantiate the defence’s claim that the 2 letters and the Sunday sharing sessions amount to “benefit to the community”.

56.  To this end, I conclude that I shall not grant any deduction of the total sentence.

Order

57.  The defendant is ordered to serve a sentence of 3 years.