HKSAR v. KAN KUI LAM

DCCC 1419/2024

[2025] HKDC 1423

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1419 OF 2024

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to a charge of burglary.

Summary of facts

2.  The incident took place in a subdivided unit in Shum Shui Po.

3.  At around 6 pm on 18 July 2024, PW1 locked the door of the subdivided unit and returned to the flat at about 9 am the following day when she found the door lock was priced open.  An air conditioner went missing.

4.  CCTV captured the followings:-

(a) At around, 9.26 pm, the Defendant walked towards the subdivided flat

(b) At around 10.15 pm, the Defendant was seen holding a strip bag containing the air conditioner, walked downstairs and left the building.

Arrest

5.  The Defendant was arrested on 24 July 2024.  He admitted under caution that:-

(a) He had sought massage services from PW1 for 40 to 50 times in the past four to five years.

(b) In around May 2024, he had an argument with PW1 over her massage skills and therefore he held a grudge against her.

(c) He admitted that he used his hands to pull open the door lock of the flat and stole the air conditioner therein.

Criminal record

6.  The Defendant has 10 previous criminal records between 1978 to 2021.  Most of them were gambling offences and he was ordered to pay fines as sentences.  None of his past convictions are related to the present offence.

Background

7.  The Defendant is now 70 and widowed in 2012.  He lost contact with his 2 adult children and lives alone.

8.  He retired in 2017 and receives government old aged living allowance to support his living.

9.  He suffers from colorectal cancer and is now undergoing chemotherapy.  As such, this court adjourned the sentence pending for updated medical report and background report.

Sentence

10.  The usual sentence for a domestic burglary is 3 years’ imprisonment.  I take 3 years as the starting point, given the fact that the Defendant pleaded guilty to the charge, I reduce the sentence to 2 years after ¹/₃ discount.

11.  The Court of Appeal has reiterated time and again that unless there are very special circumstances in the case or there are exceptionally strong mitigating factors, the proper sentencing option for this offence is imprisonment:-

(i) HKSAR v Wong Yiu Kuen[1]

(ii) HKSAR v Po Yan Chuen[2]

(iii) HKSAR v Wan Ka Kit[3]

12.  What constitutes special/exceptional circumstances depends on all the circumstances of the commissions of that offence and that of the Defendant in determining whether or not it is appropriate to exercise its power to suspend the operation of the sentence of imprisonment.

13.  In the present case, there are special circumstances:-

(a) He is now 70 years old with cancer. He found out his medical condition just 4 months ago.

(b) The initial medical report[4] tells me that this is a stage 2 colon cancer, however, he has recurrent liver metastasis. He is now undergoing palliative chemotherapy to reduce pain and spreading of cancer cells.

(c) However, the updated medical report[5] - about a month ago - stated that the Defendant has recurrent stage 4 colon cancer with multiple liver metastases, comprising four lesions, with the largest lesion exceeding 3 cm in diameter.

(d) That means the situation of the Defendant’s health condition has been deteriated drastically over the last 2 months , from stage 2 migrates to stage 4.

(e) The doctor is of the opinion that:-

“based on the current data and treatment response patterns for similar cases, the expected median overall survival is approximately 18 to 24 months, assuming continues systemic treatment and stable performance status.”

14.  On the other hand, the stolen property is obviously an old air-conditioner (about $500), or may be even useless because the owner declined to take it back.  Before the Defendant stole it, it was placed on a bed inside the sub-divided unit.

15.  The offence of burglary under s.11 of the Theft Ordinance is not an excepted offence under Schedule 3 of the Criminal Procedure Ordinance Cap 221.  That means that this Court can impose a suspend sentence.

16.  According to S 109B(1) of the Criminal Procedure Ordinance, Cap 211, which provides :-

“(1) A court which passes a sentence of imprisonment for a term of not more than 2 years for an offence, other than an expected offence, may order that the sentence shall not take effect unless, during a period specified in the order, being not less than 1 year nor more than 3 years from the date of the order, the offender commits in Hong Kong another offence punishable with imprisonment and thereafter a court having power to do so orders under S 109C that the original sentence shall take effect.”

17.  Taking the most updated medical report into account, especially the Defendant’s health condition is deteriorating very quickly, he has a life expectancy of about 18 to 24 months.  In such circumstances, I take an empathy and compassionate approach in sentencing the Defendant, I consider that this is an exceptional case to warrant a suspend sentence.  As such, I order the 2 years’ imprisonment term to be suspended for a period of 3 years.

18.  The Defendant is warned of the consequences of committing any offence during the operational period of suspension of sentence.  That means within the coming 3 years, the Court has power to activate the suspended sentence if he is convicted of any other offence.