HKSAR v. WU HOI KWONG

DCCC 149/2021

[2021] HKDC 958

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 149 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of burglary of a restaurant in Tai Po, contrary to section 11 of the Theft Ordinance[1].

2.  Full particulars of the offence are set out in the summary of facts admitted by the defendant today. 

3.  In summary at around 11:00 p.m. on 11 July 2020 Ms Man, a waitress at the restaurant, closed the restaurant and secured the glass door.  Around 5:00 a.m. the next morning when Ms Man returned to the restaurant she discovered signs of ransacking. 

4.  A black cash register containing $6,700 and a plastic box containing $50,000 had been stolen.

5.  CCTV cameras in the vicinity of the restaurant captured, inter alia, the defendant and two others in the rear alley near to the restaurant at 2:29 a.m. on 12 July 2020; at about 3:29 a.m. one of the males broke the glass door of the restaurant whilst the defendant kept lookout; about two minutes later the male came out of the restaurant carrying a box which he gave to the defendant; at about 3:34 the defendant and the male left the rear alley carrying the box and another smaller object.

6.  The defendant was arrested on 15 July 2020.    Under caution the defendant admitted committing the burglary with “Wong Chung” and “Siu Kin”; that he was the lookout and that he received a reward of $3,000.

7.  On a search of the defendant’s residence the police seized the T-shirt, the trousers and the sneakers the defendant was seen wearing on the CCTV footage. 

Mitigation

8.  In passing sentence, I have carefully considered the oral and written submission of Mr Ho, including that the defendant, who is 46 and divorced with a daughter aged 13 who lives with her mother, committed the burglary after his income dropped substantially last year due to the pandemic[2]. 

9.  I take into account that since the defendant was last released from prison in early 2018 he has tried to work hard to support his daughter who has been diagnosed with cancer[3].

Burglary

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

11.  The commission of burglary by two or more persons is an aggravating factor[4].  I enhance the starting point by 3 months to 2 years and 9 months’ imprisonment. 

12.  Although the defendant has a long criminal record including convictions for theft and robbery, I note he has no previous convictions for burglary and that many of his convictions were over twenty years ago.  In the circumstances I do not enhance the starting point by reason of previous offending. 

Commission of offence on bail

13.  The offence was however committed while the defendant was on bail for an offence of theft.  The defendant appeared in court in FLCC 1084/2020 on 20 August 2020 when he was sentenced to 4 months’ imprisonment. 

14.  I have had the opportunity of reading the case papers which reveal that the defendant was arrested on 13 March 2020 for an offence of theft committed on 28 February 2020[5].   The defendant was given police bail and first appeared in court on 29 May 2020 when he was given court bail.    

15.  Mr Ho accepts that the burglary was committed while the defendant was on bail for the theft charge.  The commission of offences while on bail is an aggravating feature of sentence.  I enhance the starting point by a further 3 months to 3 years’ imprisonment.

16.  Mr Ho asks the court to reduce the sentence on the basis of totality in that if both offences had been dealt with together part of the sentences would have been made concurrent.  Both offences are separate and distinct.  The burglary was committed over four months after the theft.  I am satisfied wholly consecutive sentences are appropriate.

17.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 years’ imprisonment.