HKSAR v. LAM SIU KEUNG

DCCC 578/2021

[2021] HKDC 1183

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 578 OF 2021

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REASONS FOR SENTENCE

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The charge

1.  The defendant pleaded guilty to one count of burglary (non-domestic), contrary to section 11(1)(a)  and (4)  of the Theft Ordinance.

2.  The particulars of the offence are that on 1 March 2021, in Hong Kong, the defendant entered as a trespasser part of a building known as “Heep Yunn Primary School”, No 1 Farm Road, Kowloon City, Kowloon (“the School”), with intent to steal therein.

The facts

3.  At around 3:00 am on 1 March 2021, a Mr Cheng, the security guard of the School (“PW1”)  heard some noises.  He then saw that there was light coming from the 1^st floor of the School and a hand extending out of the staff office window.  PW1 informed his colleague Mr Ng, another security guard of the School (“PW2”)  then they both went to have a check.  PW2 knocked on the door of the staff office and found the defendant.  He then warned him that they had reported to the police.

4.  Shortly after, the defendant climbed out of the staff office window and jumped down onto the school yard. PW1 and PW2 then went downstairs and found the defendant, who was injured but conscious, on the ground.  PW2 asked the defendant what was he doing there, the defendant replied that he intended to steal.  PW1 and PW2 guarded the defendant until the arrival of the police.

5.  The defendant was then arrested for the offence of Burglary.

6.  The defendant was wearing a pair of gloves at that time.  Upon a body search, a screw driver was found in the defendant’s right trousers pocket.

7.  Under caution, the defendant stated that he entered to steal.

8.  CCTV of the School, captured the defendant, inter alia, that

(a)  He climbed over the School wall at around 2:32 am on 1 March 2021.

(b)  He walked up the stairs and wandered for about 15 minutes.

(c)  He climbed over the staff office window and gained entry inside at around 3:05 am.

9.  There were signs of ransack inside the staff office and one glass window was broken.

10.  The defendant, admitted that at the material times, the defendant entered the School as a trespasser with intent to steal.

Background of the defendant and the mitigation

11.  The defendant, a 66-year-old man grew up in mainland China and came to Hong Kong in 1975, is currently unemployed and relying on Comprehensive Social Security Assistance with an allowance of around HK$6,970 per month.  He attained primary-level education and his wife currently lives in Shenzhen.

12.  As far as the mitigation is concerned, counsel for the defendant, Mr Chan submitted that no property was stolen from the School but instead the defendant had badly injured himself including damage to his left arm, his left wrist and his left ear.  Mr Chan also stressed that the defendant had acted alone, and his modus operandi is not sophisticated.  The defendant was cooperative with the two security guards as well as the Police.

13.  The defendant has amassed a total of 17 entries of criminal conviction since 1983 which involves a total of 35 offences, of which 26 are burglary related.  He was free of trouble since his last release and that is not a very short period of time. 

14.  Nevertheless, counsel for the defence fairly agreed that the defendant is on all fours a persistent offender. 

15.  That said, it was stressed that the defendant had a deep reflection and he wished to turn a new leaf and not to reoffend anymore.

Sentencing guidelines

16.  I have been referred to two cases, namely The Queen v Wong Man [1993] 1 HKC 80 and Attorney General v Lui Kam Chi [1993] 1 HKC 215.  There is a sentencing guideline for this type of offence – non-domestic burglary, and in the absence of aggravating features, the usual starting point for consideration is 30 months.

17.  To decide whether the offence features any aggravating factors, I note the case of HKSAR v Fan Kit Hung CACC 62/2009, at para 9, the Court of Appeal cited with approval the dicta of Yeung JA (as he then was)  at para 15 of HKSAR v Cheng Wai Kit, CACC 338/2007:-

“The starting point can be adjusted upwards if there are aggravating circumstances such as: (1)  the offence is carefully planned and skillfully executed involving the use of heavy instruments or equipment; (2)  the offence is committed by two or more people; (3)  the offence targets substantial premises and involves substantial properties; (4)  the offender is a professional burglar and not just an opportunist; (5)  the offender has previous convictions, particularly previous convictions of a similar nature, and (6)  the offender commits multiple offences.”

Consideration

18.  The defendant acted alone at the time and there was no evidence to suggest that it was a sophisticated burglary nor that it was well-planned.

19.  I bear in mind Mr Chan’s submission that the defendant did not succeed in stealing any items, but it bears not much weight on the sentencing of the current charge.

20.  I note that the defendant badly injured himself as a result of the present case.  In this regard, it would be relevant to refer to the case of Yip Kai Foon v HKSAR (2000)  3 HKCFAR 31 where the applicant had been paralysed by injuries he had received in the course of a gun battle with the police, it was held by Li CJ that as a general rule, injuries were not a factor for consideration as regards the sentence.  However, where the injuries were very serious, even though suffering in the course of criminal activity, they could be taken into account to reduce the sentence exceptionally.

21.  In the present case, I consider the injury to the defendant a serious one as the defendant has become deaf in his left ear and therefore it is justified to give a discount on his sentence on this fact.

22.  However, I cannot ignore the aggravating factor that the defendant has a bad conviction record for dishonesty-related offences.  As a general principle, a defendant should not be punished for a previous offence for which he has received his punishment.  However, in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, the Court of Appeal has imposed a duty on the court to consider passing a sufficient deterrent effect to protect the public on a defendant who is a persistent offender.

23.  As a matter of fact, the defendant is a persistent offender even if, assuming to his benefit, he has not become a professional or skillful one.

Sentence

24.  Having considered carefully, I shall adopt the starting point of 30 months for the Charge.  Bearing in mind the previous similar convictions, I shall increase the sentence by 6 months.

25.  The defendant is entitled to a full one-third discount for his plea of guilty.  The 36 months’ imprisonment is reduced to one of 24-month.

26.  Taking into account that the defendant has suffered serious injury, I give him a further discount of 3 months.  I do not see any further mitigation that would warrant further reduction.

27.  Consequently, the defendant is sentenced to 21 months’ imprisonment, which is an immediate one, not suspended.