HKSAR v. LUI KAM CHUNG

DCCC 925/2020

[2021] HKDC 529

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 925 OF 2020

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Burglary" (Charge 1) and a charge of "Attempted burglary" (Charge 2). He committed both offences in the same evening together with 2 other persons. The premises involved were 2 restaurants. Nothing was lost.

Summary of Facts

Charge 1

2.  Madam Chen (PW1) was a staff member of a restaurant situated at Ground Floor, No.5 Burrows Street, Wanchai ("Shop 1").  About 11:30 p.m. on 30 May 2020, she left Shop 1 after locking up.

3.  PW1 returned to Shop 1 around 11:00 a.m. on 31 May 2020.  She found the roller shutter at the main entrance ("Roller Shutter 1") being left open; its switch panel box also left open and the padlock of the switch panel box damaged; signs of ransacking in Shop 1; and no property missing from Shop 1.

4.  CCTV footage of Shop 1 captured the defendant and 2 males (Males A and B) appearing outside the restaurant around 5:05 a.m. on 31 May 2020.  Male A prized open the switch panel box and opened Roller Shutter 1.  The defendant then entered Shop 1 alone and ransacked the premises whilst Males A and B remained outside.  The defendant and the 2 males left at 5:10 a.m. on the same day.

5.  The defendant was arrested on 2 June 2020.  Under caution, he admitted that after Male A had prized open the switch panel box and opened Roller Shutter 1, the defendant entered Shop 1 but did not steal anything.  The defendant's residence was searched.  The clothes worn by him during the offence and a screwdriver used for committing the offence were found.

6.  In his video recorded interview, the defendant made detailed admissions about committing the offence together with Males A and B.  He alleged that it was Male A who suggested them to commit burglary together.  Male A scolded the defendant for failing to steal anything from Shop 1.

Charge 2

7.  Madam Cheung (PW2) was a staff member of a restaurant situated at Ground Floor, No.5 Wood Road, Wanchai ("Shop 2").  About 9:30 p.m. on 30 May 2020, she left Shop 2 after locking up.

8.  PW2 returned to Shop 2 around 9:00 a.m. on 31 May 2020.  She found the roller shutter at the main entrance ("Roller Shutter 2") closed; its switch panel box damaged; the floor tiles on the ground for locking up damaged; no signs of ransacking in Shop 2; and no property missing.

9.  The defendant was arrested on 2 June 2020.  Under caution, he admitted that he had provided tools to Male A to prize open Roller Shutter 2.  The defendant stayed outside Shop 2 as a lookout only.

10.  In his video recorded interview, the defendant admitted that after committing the 1^st burglary, Male A suggested to burgle another place.  The party then went to Shop 2.  Male A took out a screwdriver and tried to prize open Roller Shutter 2, but was unsuccessful.  He asked the defendant to bring back a crowbar and a bolt cutter.  The defendant brought the tools from home.  Male A used the crowbar and bolt cutter to prize open Roller Shutter 2.  The defendant claimed that he did not enter Shop 2, and did not know if Males A and B had entered Shop 2 or stolen anything.  Males A and B left the scene around 6:00 a.m. and returned the tools to the defendant.  Male A also gave him a screwdriver.  The defendant identified the crowbar and bolt cutter found in his home.

Mitigation & Sentence

11. The defendant is 47 and has 2 conviction records, which involved 2 minor gambling offences. For the purpose of sentencing, I would treat him as having a clear record. Defence counsel Mr. Tam informed me that the defendant is divorced and lives alone. He has a daughter (aged 18) and a son (aged 16), but they reside with their mother. Prior to his arrest, the defendant was a decoration worker earning about $700 per day. He pays $5,000 child maintenance each month.

12. In mitigation, Mr. Tam submitted that the defendant has been remanded in jail custody since his arrest in June 2020. He has shown genuine remorse by making frank admissions. Mr. Tam explained that the defendant's income dropped significantly owing to the pandemic. He committed the present offences due to financial difficulties. Fortunately, nothing was stolen from either restaurant.

13. Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. I am aware that nothing was stolen from either restaurant. Mr. Tam has fairly accepted it is an aggravating factor that both offences were committed by the defendant and 2 males acting in concert. Committing 2 burglaries within the same day is also an aggravating factor[1]. I would increase the starting point for each charge to 33 months. With the timely guilty pleas, the sentence for each charge is reduced to 22 months.

14. Bearing in mind the totality principle, I consider a global starting point of 42 months just and appropriate for both charges. With the timely guilty pleas, the overall sentence is reduced to 28 months. Hence, I order 6 months in Charge 2 to run consecutive to the sentence of Charge 1.