HKSAR v. CHUNG HOI TO AND ANOTHER

DCCC 78/2018

[2018] HKDC 1163

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 78 OF 2018

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REASONS FOR SENTENCE

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Background

1.  D1 and D3 were both convicted of five charges of burglary and one count of attempted burglar [i] on their own plea and agreement to amended Summary of Facts.

Agreed facts

Charge 1

2.  According to the amended Summary of Facts, Charge 1 did concern Ground Floor Medical Clinic situated in Kwai Chung West Estate and was fitted with a locked main door and an extra padlock.  The main door was found left ajar and prised open in early hours of 24 July 2017.  There were cracks of around 3 feet long marked found on the main door.  Cash of HK$13,000, cash of ¥1,000 Renminbi, two watches and one bracelet were found missing. Total value of property is around HK$22,000.  Cost of repair of main door is around HK$12,000.

3.  Upon arrest, D1 admitted under caution that he acted as a lookout while D3 burgled the clinic.  D1 said he received a call from D3 to act as lookout and he was given HK$1,000 as a reward.

4.  D3 was also arrested and under caution he admitted burgling the clinic.  He admitted using a crowbar to gain entry and D1 was his accomplice.  In the video-recorded interview, he said that he stole HK$13,000, RMB¥1,000, a watch and that he shared the cash equally with D1.  He said tools were being prepared by D1.

5.  D1 was caught on CCTV footage of the clinic wearing a hat and a mask at the time.

Charge 2

6.  The front glass door of the concerned medical clinic on ground floor shop in Kwai Chung Centre was found broken in the early hours of 28 July 2017.

7.  Cash of HK$3,000 was found missing.  CCTV footage revealed a male wearing a hat and a mask broke the front glass door, entered and ransacked the place. 

8.  D1 was arrested and under caution he admitted acting as lookout while D3 burgled.  In the video-recorded interview, he said that he received a call from D3 and acted as a lookout.  He received $300 as a reward.

9.  D3 was arrested and under caution he admitted he stole around HK$3,000 and he used a crowbar to gain entry and D1 was his accomplice as a lookout. 

10.  Later, in the video‑recorded interview, he said that he stole around HK$1,890 from the clinic and shared the money equally with D1.

Charges 3 to 6

11.  The offences in relation to Charges 3 to 6 all occurred on 6 August 2017.

Charge 3

12.  The noodle shop was situated on the 1st floor of a shopping centre at No 202 Wo Yi Hop Road, Kwai Chung.  The front door and cashier drawer were found prised open and cash of HK$3,500 was stolen on 6 August 2017.  There was also signs of ransacking.  Repair cost of the front door was around HK$3,000.

Charge 4

13.  The bonesetter’s shop was situated on the ground floor of the same shopping centre at No 202 Wo Yi Hop Road.  On 6 August 2017 the owner of the shop found the front door and some drawers of the shop were prised open.  There was also signs of ransacking and a watch valued at HK$1,699 was found missing. 

14.  CCTV footage of the shopping centre showed the male entered and left the shop in early hours of 6 August 2017 and this male removed his jacket and cap after he left the shopping centre.  He also dropped his handbag into a construction site.

Charge 5

15.  On 6 August 2017 the main visitor gate of the North Kwai Chung Jockey Club Swimming Pool at No 290 Wo Yi Hop Road was found with prising marks.  No loss was found inside the swimming pool.

Charge 6

16.  In the early morning of 7 August 2017, the coach of the Lifeguard Club located at North Kwai Chung Public Swimming Pool found the iron doors of the club was prised open with signs of ransacking inside. Five packs of drinks and three sunglasses were missing.  The value of these items was around HK$470. 

17.  CCTV footage show a man with a hat and a mask climbed over the outer wall near Wo Yi Hop Road and broke into the club in the early hours of 6 August 2017.

18.  When D1 was arrested, under caution, he admitted he acted as a lookout with another while D3 burgled the noodle shop and the bonesetter’s shop.

19.  In the video recorded interview D1 admitted he received a call from D3 asking for break in tools.  He and another therefore packed the break in tools into a handbag and they all went to the swimming pool to burgle and D1 himself acted as a lookout.  Later they went to the above shopping centre and D1 waited for D3 while acting as a lookout for D3. 

20.  When D3 returned, they all went to D1’s residence and counted the stolen property and D1 kept the coins in his residence. Later they all again returned to the same shopping centre and he again acted as a lookout and left only after he received a call from D3 that he could leave.

21.  Upon arrest and under caution, D3 admitted burgling the noodle shop and stole a few thousand Hong Kong dollars.  He also admitted he burgled the bonesetter’s shop using tools to gain entry on these occasions.

22.  The watch from the bonesetter’s shop and cash of HK$1,458.5 were found in D3’s possession.  D3 admitted under caution at an interview that he stole HK$3,000 from the noodle shop, using crowbar to gain entry, with D1 and another acting as a lookout.  He admitted the watch was stolen from the bonesetter’s shop.

23.  In the video recorded interview under caution D3 said:

(a) he burgled the Lifeguard Club by prising open the door. He then went to the main visitor gate of the swimming pool and tried to prise open the door, but failed. D1 acted as a lookout.

(b) D1, D3 and another then went to the shopping centre, when D1 acted as a lookout while D3 prised open the noodle shop with a crowbar and stole some money. Three of them all went to somewhere near D1’s residence when D3 gave D1 some money.

(c) All three again returned to the same shopping centre, when D1 acted as a lookout while D3 prised open the bonesetter’s shop with a crowbar and stole a watch.

(d) D3 left the shopping centre and disposed the handbag with the break in tools and the T-shirt in a nearby construction site. He admitted to be the one in the CCTV footage disposing the handbag in the construction site.

24.  The handbag of tools and T‑shirt were later recovered.  Inside the handbag a pair of sunglasses was found and identified as the one missing from the Lifeguard Club.

25.  Call records revealed that D1 and D3 frequently made calls to each other and at the material times they were both in Hong Kong. 

26.  A house search was conducted in respect of D1 and D3.  Their clothes worn at the material times were seized.  At D1’s residence, HK$1578.20 and RMB¥0.5 was found in a black recycling bag.

27.  At the material times, D1 and D3 :

(a) entered the noodle shop and the bonesetter’s shop as trespassers and stole there;

(b) attempted to enter the said swimming pool as trespasser with intent to steal; and

(c) entered the Lifeguard Club as trespasser and stole there.

Criminal record

D1

28.  D1 has nine previous convictions involving 18 charges of which 6 are robbery charges.  There is no similar conviction to burglary.

D3

29.  D3 has three previous convictions, one of which is theft.  There is no similar conviction to burglary.

Mitigation

D1

30.  D1 is aged 31.  He was born in China.  He received education up to Form 3 in Hong Kong, after which he worked at various jobs.

31.  At the time of the offences, he was a restaurant manager.

32.  He suffered from mild myocarditis.  He has separated from his wife and lived with his parents, sister and daughter.

33.  It is submitted by Mr Ma on behalf that no violence was involved in this case and that the burgled site were non-domestic premises not with substantial value.  He submitted that though criminal record of D1 is alarming but there is no similar conviction and as such which suggests that D1 is not a professional burglar.

34.  He further submitted that as the six offences were all committed within two weeks and whilst accepting multiple charges as an aggravating feature.  The 3^rd to the 6^th charges all took place within the early hours on 6 August 2017.  He asks this court to impose a concurrent sentence for these charges.

35.  He further submitted that as D1 merely acted as a lookout for reward and the value of the stolen property of all charges totalled around HK$30,000 and with the recovery of cash of HK$3,000, a pair of sunglasses and a watch, the total value of lost property is around HK$25,000, together with repair charges of around HK$15,000.

36.  He said that the present burglary charges involved two persons.  Although there is some degree of planning, the extent is not substantial.  The method of burglary adopted is primitive, just using the crowbars and tools to prise open the premises and ransack.

37.  Considering the circumstances in this case, he asks this court to adopt the sentencing starting point for the 3^rd to 6^th charge at 3 years and for another 3 months to 6 months for each of the 1^st and 2^nd charges.

38.  Mr Ma further submitted that since his remand, D1 has started to have faith in God and he is remorseful as to what he has done and has confessed fully to his crime immediately upon his arrest.

39.  He handed the court a letter from Deacon Peter Wong of Permanent Deacons’ Office saying that D1 is remorseful and is willing to change for the better.

40.  He asks this court to afford D1 with one-third sentencing discount.

D3

41.  Mr Kwan for D3 adopted the mitigation by Mr Ma so far as relates to and is applicable to D3’s case.  He submitted that D3 was not a professional burglar, as one could see from the way that he prised open the premises; in particular when he failed to gain entry to the premises in the 3rd charge. 

42.  He said that D3 is remorseful and therefore confessed the commission of the offences.  He also presented to this court mitigation letters by D3 and his elder brother which basically say D3 himself is not a professional burglar, that he has committed the offence due to a foolish decision and is now deeply remorseful.

43.  For the personal background of D3, he is aged 28 years old. 

44.  He was born in Hong Kong and has received education up to high diploma level in business administration.

45.  He has worked in various jobs, including that of a site supervisor at a construction site.  At the time of the offence he was unemployed as his employer company has lost the contract for the construction site that he worked in.

46.  He is single.  He lived with his mother, brother and sister.

Discussion

47.  In the Court of Appeal case of HKSAR v Cheng Wai Kei CACC 338/2007, it is said in the judgment paragraph 14, 15 and 16 that :-

“14. The proper sentence starting point for sentence in case of burglary of non-domestic premises is 30 months’ imprisonment (see R v Wallman unreported CACC 372/1992).

15. The starting point can be adjusted upwards if there are aggravating circumstances such as;

(i) the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment;

(ii) the offence is committed by two or more people;

(iii) the offence targets a substantial premises and involves substantial properties;

(iv) the offender is a professional burglar and not just an opportunist;

(v) the offender has previous convictions, particularly previous convictions of similar nature; and

(vi) the offender commits multiple offences.

16. If the offences were committed in different premises against different victims on different dates, consecutive sentences should be imposed (see AG v Lui Kam Chi [1993] 1 HKC 215).”

48.  In the case here:-

(a) there is clearly planning involved in the preparation for the commission of each of the offences. The degree of planning, however, is not sophisticated;

(b) numbers of persons involved in the commission of the offences is no less than two, sometimes three and each would take an individual defined role during the commission of the offence;

(c) both defendants have previous convictions relating to dishonesty, though not similar;

(d) the defendants commit multiple offences.

49.  These are all aggravating factors and the starting point of 2½ years should be adjusted upwards.  Further, this court also takes into consideration the period within which the six burglaries were committed, i.e. between 24 July 2017 to 6 August 2017, the property stolen valued at HK$30,000; repair costs of HK$15,000, the value of these are not substantial and of course there is the value of recovered property of HK$3,000 plus the pair of sunglasses.

50.  I agree with Mr Ma that the appropriate sentencing starting point for each charge should be 3 years.

51.  I have also considered the amount of loss to the victims as aforesaid and the mitigation advanced forcefully by D1 and D3’s counsel.  Nevertheless, this court took the view that D1, acting as the lookout and the one preparing the tools for prising open the ransacked premises, his culpability, in my view, is no less and no more than that of D3.

Charge 1

52.  Considering the foregoing and in particular the timely plea of the defendants, for which they are entitled to a full one‑third sentencing discount, in respect of the 1^st charge, both D1 and D3 are sentenced to 24 months’ imprisonment.

Charge 2

53.  This offence was committed four days later, involving  different premises, different victim.  This is a separate and distinct offence to the 1st charge.  A consecutive sentence should be imposed. The defendants are each sentenced to 24 months’ imprisonment.

Charges 3 to 6

54.  The offences relating to the 3^rd charge, 4^th charge, 5^th charge and 6^th charge all occurred in the early morning on the same day about a week later.  The 3^rd charge and the 4^th charge involved different units in the same shopping centre owned by different victims, whereas the 5^th charge and 6^th charge involved different areas in the same swimming pool complex.

55.  In the Court of Appeal case of HKSAR v Ngai Yu Chung [2011] 5 HKLRD 690, Stock VP emphasised that the real point is not whether two or more offences are committed at or about the same time, but whether the second or further offences do add to the culpability of the first.

56.  Based on the Agreed Facts before me, it appears that the Lifeguard Club formed part of the swimming pool complex.  The commission of the 5^th and 6^th charges is somewhat analogous to the defendants burgling different rooms in the same premises.

57.  Accordingly, this court considers concurrent sentence in respect of the 5^th and the 6^th charges appropriate. The defendants are each sentenced to 24 months’ imprisonment for each of the 5^th charge and the 6^th charge, but the sentence of these charges shall run concurrent to each other.

58.  As for the sentence in respect of the 3^rd and the 4^th charges, although there is proximity in time and venue, the premises do form different units in the same shopping centre.  This court does not consider that sentence on the two charges should run concurrent to the sentence in the 5^th and 6^th charge, as the commission of these offences do add to the culpability of the defendants.

59.  Accordingly, D1 and D3 are sentenced to 24 months’ imprisonment in respect of the 3^rd charge and 24 months’ imprisonment in respect of the 4^th charge.

60.  Next, this court has to consider the totality principle to ensure that a just and proportionate sentence is imposed on D1 and D3 having regard to their overall culpability. 

61.  This court considers that a global starting point of 5 years is just and proportionate and accordingly I order that while D1 and D3 are sentenced to 24 months’ imprisonment for each of the six charges, but the sentence for 5^th and 6^th charge, as I have said earlier, shall run concurrent to each other, making a total sentence of 24 months.

62.  4 months of the sentence for the 4^th charge shall run consecutive to the sentence for the 5^th and 6^th charge and the other 20 months shall run concurrent. 

63.  4 months of the sentence for the 3^rd charge shall run consecutive to the sentence for the 4^th, 5^th and 6^th charge, while the other 20 months shall run concurrent.

64.  4 months of the sentence for the 2^nd charge shall run consecutive to the sentence for the 3^rd, 4^th, 5^th and 6^th charge, while the other 20 months shall run concurrent.

65.  4 months of the sentence for the 1^st charge shall run consecutive to the sentence for the 2^nd, 3^rd, 4^th, 5^th and 6^th charge, while the other 20 months shall run concurrent; making the total sentence for D1 and D3 each to 40 months’ imprisonment.