HKSAR v. LEE CHI KEUNG

   DCCC 800/2019 & 417/2020

(Consolidated)

[2021] HKDC 35

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 800/2019 & 417/2020

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REASONS FOR SENTENCE

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

2.  Full particulars of the offences are set out in the amended consolidated summary of facts admitted by the defendant today[2]. In summary in June 2019 the defendant burgled a fruit shop in Sham Shui Po and stole about $2,000 cash.  In July 2019 the defendant burgled two different storerooms belonging to his previous employer and stole renovation tools. 

Charge 1

3.  At 6 p.m. on 29 June 2019 Ms Lam, the proprietor of a fruit shop on the 1/Floor of Pei Ho Street Municipal Services Building, placed about $2,000 petty cash in a container.  Ms Lam closed the roller-shutter gate and left the shop. 

4.  The shop was closed for business on 30 June 2019 and 1 July 2019.  When Ms Lam returned to work on 2 July 2019 she found the petty cash missing. 

5.  Ms Lam reviewed CCTV footage from which she identified the defendant, who she had known for about four months, pulling up the roller shutter and entering the shop at 11:41 a.m. on 30 June 2019 and leaving one minute later.

6.  Ms Lam did not authorise the defendant to enter the shop or take any property from the shop.

Charges 2 & 3

7.  Mr To is the proprietor of a renovation company which rents several storerooms for keeping renovation tools.  Mr To hired the defendant on a casual basis from October to December 2018.  The defendant knew the locations of the storerooms where the renovation tools were placed. 

Charge 2

8.  At 6 p.m. on 3 July 2019 Mr To secured with a padlock the storeroom in Block A of Po Yip Building, Nos. 62-70 Texaco Road in Tsuen Wan and left the key hidden nearby.

9.  At 9 a.m. on 6 July 2019 Mr To returned to the storeroom and found two hydraulic drills, eight concrete guns, four electric drills, two concrete drills, one electric welding machine and one electric wire missing.  The total value of the tools was $36,000.

10.  Mr To reviewed CCTV footage and identified the defendant taking the hidden key and entering the storeroom at 7:55 a.m. on 6 July 2019 and leaving with a trolley.

Charge 3

11.  At 10 a.m. on 8 July 2019 Mr To locked the wooden door to the storeroom on the 7/F of Kwai Shun Industrial Centre, Nos. 51-63 Container Port Road in Kwai Chung.

12.  At 9:30 a.m. on 10 July 2019 Mr To returned to the storeroom and found that the wooden door had been prized open.  One welding machine, seven electric drills and two hydraulic drills were missing.  The total value of the tools was $35,000.

13.  Mr To reviewed CCTV footage of Kwai Shun Industrial Centre and identified the defendant leaving the centre at 2:16 p.m. on 8 July 2019 pushing a trolley with some tools on. 

14.  The defendant was arrested for charges 2 and 3 on 23 July 2019 and for charge 1 on 26 November 2019 in Lai Chi Kok Reception Centre.

Mitigation

15.  In passing sentence, I have carefully considered the oral and written submissions of Ms Lo, including that the defendant is 39, single and a construction site worker[3].  I take into account the defendant has no previous convictions. 

16.  I have read the defendant’s mitigation letter in which he explains he committed the offences to repay the money he had borrowed from relatives to pay for the funeral expenses of his father who sadly passed away in March 2019[4].  The defendant promises not to commit mistakes like this anymore[5].

Starting point

17.  The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months’ imprisonment. 

Charge 1

18.  I am satisfied the correct starting point is 2 years and 6 months’ imprisonment.  Giving the defendant full credit for his plea of guilty reduces the sentence to 1 year and 8 months’ imprisonment.

19.  Ms Lo asks that I take into account the defendant’s confession[6].  Ms Lo explains when the defendant was first approached by the police in Lai Chi Kok Reception Centre in connection with charge 1 he remained silent.  After he was legally represented contact was made with the police for the defendant to confess to charge 1.   

20.  The defendant’s confession is not however the only evidence.  As particularised in the summary of facts Ms Lam recognised the defendant as the burglar from the CCTV footage.   I am satisfied no further discount is warranted.  The confession of the defendant is in any event subsumed within the one-third discount for pleading guilty[7].   

Charges 2 & 3

21.  I am satisfied the correct starting point on each charge is 2 years and 6 months’ imprisonment. 

22.  The defendant clearly used his knowledge acquired when working with Mr To about the location of the storerooms where valuable renovation tools were stored, including the location of the key to one of the storerooms (charge 2).  This is an aggravating feature of the second and third burglaries by reason of which the court may enhance the starting point[8].

23.  In HKSAR v Sim Ka Wing the Court of Appeal said that a modest enhancement was appropriate where the offence involved the use of knowledge about the burgled premises acquired while working there[9].

24.  I enhance the starting point on charges 2 and 3 by 3 months to 2 years and 9 months’ imprisonment.  Giving the defendant full credit for his pleas of guilty reduces the sentence on charges 2 and 3 to 1 year and 10 months’ imprisonment.

Totality

25.  Taking into account all the circumstances of the three burglaries including that charges 2 and 3 were storerooms of the defendant’s former employer; cash and goods to the total value $73,000 were stolen; none of the renovation tools have been recovered, no restitution has been made and that the defendant has a clear record and confessed to charge 1, I am satisfied that a total sentence of 2 years and 10 months’ imprisonment properly reflects the defendant’s criminality on the three charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[10].  

Sentence

26.  The defendant is convicted and sentenced as follows:

Charge 2 – 1 year and 10 months’ imprisonment.

Charge 3 – 1 year and 10 months’ imprisonment with 6 months consecutive and 16 months concurrent to charge 2; and

Charge 1 – 1 year and 8 months’ imprisonment with 6 months consecutive and 14 months concurrent to charges 2 & 3.

27.  The total sentence to be served by the defendant is 2 years’ and 10 months’ imprisonment.

[1]       Cap 210.

[2]       §§8, 11 & 12 of the consolidated summary of facts were amended in court on 8 January 2021. 

[3]       See §§2-4 of the skeleton submissions for mitigation.

[4]       Also see §§5-7 of the skeleton submissions for mitigation.

[5]       Also see §10 of the skeleton submissions for mitigation.

[6]       See §12 of the skeleton submissions for mitigation.

[7]       See HKSAR v Ma Ming [2013] 1 HKLRD 813 at §32 and HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 at §41.

[8]       See for example HKSAR v Cheng Ho Wai CACC 78/1998; HKSAR v Sim Ka Wing CACC 450/2000 and HKSAR v Chen Ting Fang CACC 221/2007.

[9]       CACC 450/2000.

[10]     See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 and HKSAR v Pau King Kong [2013] 3 HKLRD 676.