HKSAR v. WONG NOK YIN AND OTHERS

DCCC 491 & 972/2020

(Consolidated)

[2021] HKDC 575

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 491 AND 972 OF 2020

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REASONS FOR SENTENCE

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1.  The five defendants (D1-D5) pleaded guilty before me to various charges on a Charge Sheet as follows.

2.  D1, D2, D3 and D5 pleaded guilty to Charge 1 of Burglary; and D1, D2 and D4 pleaded guilty to Charge 2 of Burglary.  Both charges were preferred under section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

3.  Particulars of Charge 1 are that D1, D2, D3 and D5, on 30 November 2019, in Hong Kong, together with another person unknown, having entered as trespassers part of a building known as Room 1601, CELLTRONIK HOTEL, Flat A4, 16^th Floor, Block A, Mirador Mansion, Nos 54-64B Nathan Road, Tsim Sha Tsui, Kowloon, stole therein one MacBook Pro, one computer carrying case, one backpack, cash of ¥700 Renminbi, one United States passport, one power bank, one smartphone and one portable speaker.

4.  Particulars of Charge 2 are that D1, D2 and D4, on 18 December 2019, in Hong Kong, having entered as trespassers part of a building known as Room 801, PARIS HOTEL, No 129 Temple Street, Yau Ma Tei, Kowloon, stole therein one television, one antenna, one cable, one television wall mount, one remote, 4 screws, one hairdryer, one plastic box and one towel.

5.  In addition, D3 pleaded guilty to Charge 4 of Failure to produce proof of identity on demand, contrary to section 17C(3) of the Immigration Ordinance, Cap 115.  Particulars are that he, on 20 January 2020, outside Ground Floor, No 21A Lock Road, Tsim Sha Tsui, Kowloon, in Hong Kong, being a person who is required to have with him proof of identity, failed to produce on demand proof of his identity for inspection by a police officer, namely, Police Constable 26454.

6.  Lastly, D4 also pleaded guilty to Charge 5 of Failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221.  Particulars are that she, on 9 September 2020, in Hong Kong, being a person admitted to bail, without reasonable cause, failed to surrender to custody as had been appointed by a court.

7.  Prosecution asked that Charge 3 of Theft against D1 be left on court file not to be proceeded with without the leave of this court or the Court of Appel.  I so ordered.

Facts admitted by all defendants

Charge 1 – Burglary against D1, D2, D3 and D5

8.  PW1 visited Hong Kong on 29 November 2019 and checked into Room 1601 of Celltronik Hotel (“the guesthouse”) on 16/F of Mirador Mansion for two nights. Room 1601 adjoined the common corridor of 16/F with a ventilation window in between.  At about 8 pm on 30 November 2019, he left the guesthouse after locking his door.  When he returned at about 7 am the next day, he discovered that his property listed in the charge to the total value of $11,929 was missing.

9.  What happened was, on 30 November 2019, at 11:34 pm, after knocking on the main door of the guesthouse with no response, D3 climbed through the ventilation window of one of the rooms therein namely Room 1601 with help from D5 who lifted him up.  This ventilation window is located between the room and the public corridor of 16/F.  Shortly afterwards, the door of the guesthouse was opened from the inside and D1, D2 and D5 and a male WP entered through the door.  Within a minute, they all left, with D3 holding a small black bag and PW1’s black backpack, and with D5 holding PW1’s blue computer carrying case.  D5 passed the blue case to WP.  D3 went his separate way.  The others went down to Nathan Road at the location where D2’s car was parked. Several minutes later, D3 joined them for a brief chat.  D1 and D2 then left by car while the rest walked off.

Charge 2 – Burglary against D1, D2 and D4

10.  Paris Hotel was located in Temple Street.  Ms Tsoi had booked Room 801 for one night on 16 December 2019 but later told the hotel staff that someone else would pay to extend the stay.  At 12:55 am on 18 December 2019, PW3 a staff member received a call at the front desk from Room 801 saying there was someone shouting for help [from the 10/F^[1]]. Staff went [to Room 801^[2]] at once but no one answered the door.  Staff then entered the room with a keycard and found the items belonging to the room and listed in the charge to the total value of $4,000 missing.

11.  What happened was D1, D2 and D4 who had no right to be there had entered Room 801 using a keycard and carried out of the room all the above-mentioned items and took the stairs to 6/F.  They then took the lift to G/F and left via the front door.

12.  At 11:10 am on the same day, D2 and an unknown male approached the hotel with all the missing property and claimed to be returning the same on behalf of their friend who had taken it for repair.  They offered to help mount the TV back on the wall but were told a police report had already been made.

13.  In the afternoon of the same day, D1 and D2 were intercepted separately in the vicinity and were arrested for Charges 1 and 2.  Under caution, D1 stated that he had gone to the guesthouse at Mirador Mansion to look for a friend and he had stolen the TV from Paris Hotel to prank someone.  Under caution, D2 stated that he had gone to the guesthouse at Mirador Mansion with 4 friends to chat with someone named “Ah Moon”; and he and D1 had taken the TV from Paris Hotel to prank Ms Tsoi because the latter had owed him $2,000.

Charge 4 – Failure to produce proof of ID against D3

14.  At 5:30 am on 20 January 2020, D3 was stopped on exit from a building in Lock Road, TST.  D3 failed to produce his HKID card on demand and claimed to have lost his wallet several days ago and claimed that he had reported it missing at Kwai Chung Police Station.  However, no such loss had been reported.  D3 was arrested.

Arrest of D4

15.  D4 was arrested on 27 December 2019 and stated under caution for Charge 2 that she and her friends had taken away the TV to prank someone named “Ah Gai” and her friends had already returned the TV to the hotel.

Arrest of D5

16.  D5 was arrested on 13 August 2020 and stated under caution for Charge 1 that D2 had asked him to go there to collect a debt that day.

Cautioned interviews

D1

17.  During cautioned interviews, regarding Charge 1, D1 stated that D2 had asked him to go to the guesthouse together to help collect a $10,000 debt from a Pakistani male “Ah Moon”; that D1, D2, D3 and D5 and another male went to the guesthouse together; they could not reach Ah Moon; D3 climbed into the guesthouse via the window and opened the door from the inside; D3 and D5 rummaged through the tenant’s belongings inside Room 1601; D3 took someone’s backpack which contained a laptop; D1 later left on D2’s car while D3, D5 and the male left by taxi.

18.  Regarding Charge 2, D1 under caution stated that his friend Tsoi and her boyfriend D3 had rented Room 801 but D3 had not paid to extend the stay beyond 12 noon of 17 December 2010 for use by D1; but D1 somehow obtained the keycard from D3; he was not happy with D3 who was supposed to extend the stay; he therefore asked D2 to help prank D3 by taking away the TV because it was booked under Tsoi’s name; they together with D4 entered Room 801 using the keycard, dismantled the TV and took it away with other items from the room.

D2

19.  During cautioned interviews, regarding Charge 1, D2 stated that Ah Moon owed him money so he decided to go to find him at the guesthouse with D1, D3, D5 and another male; no one answered the door so D3 climbed through the window, entered the room and opened the door for the rest of them to enter the guesthouse.

20.  Regarding Charge 2, D2 under caution stated that since Tsoi owed him $2,000, he suggested that D1 and D4 should prank Tsoi by taking away the items from the hotel room; it was D1 and him who dismantled the TV using a screwdriver and they stole the other items; D4 then called the front desk saying that someone at 10/F was shouting for help in order to distract the staff while they made good the escape; later D2 and a friend returned the items to the hotel.

D3

21.  During cautioned interviews, regarding Charge 1, D3 stated that he received a call from D2 asking him to find Ah Moon with D1, D5 and another male; they then met at Mirador Mansion; no one answered the door so D2 asked him to climb into the guesthouse through the ventilation window; he did so with help of D5 and opened the door from the inside; then D1, D2, D5 and another male entered the guesthouse and searched for items there; he took a backpack containing a laptop and D5 took away a bag; he left alone by taxi but later met the others outside Mirador Mansion; D5 sold the laptop for $1,500 and gave the money to D2 who gave him $500.

22.  Regarding Charge 4, D3 stated under caution he had lost his HKID card in mid-December 2019; that he had made an appointment to apply for a replacement at the Immigration Department in January 2020 but he did not attend the appointment in the end.

D4

23.  During a cautioned interview, regarding Charge 2, D4 stated that in the afternoon of 17 December 2019, D3 gave the room keycard to D1 who passed it to her; she together with D1 and D2 then went to Room 801 and took away the TV to prank D3 and Tsoi as they had owed D2 money; D1 and D2 dismantled the TV using a screwdriver after which she called the front desk saying that someone on 10/F had shouted for help so as to distract the staff while they made good their escape; she discovered in the afternoon of 18 December 2019 that D2 had returned the TV to the hotel.

D5

24.  During a cautioned interview, regarding Charge 1, D5 stated that he received a call from D2 asking him to meet at Mirador Mansion to collect a debt; he went and met up with D1 and D2; the trio went up to 16/F but failed to enter the guesthouse; D3 and another maile arrived; D3 opened the ventilation window; he lifted D3 up; D3 climbed through the window and opened the guesthouse door from the inside; he entered Room 1601 and took a look; D3 and another male took two bags away from the room; the male had passed him the bag that the male had earlier taken; he opened the bag and saw a passport and a laptop; he and D3 later put the two bags into D2’s car.

Charge 5 – Failure to surrender to custody against D4

25.  A day namely 9 September 2020 had been appointed for D4 to appear at the District Court for mention for this case.  She failed to appear and so a warrant of arrest was issued against her.  On 27 September 2020, she was arrested inside a flat in Cheung Sha Wan for an unrelated case.  She was therefore re-arrested for the present case.

26.  Under caution, D4 admitted that she had simply forgotten to attend court on 9 September and that she had not surrendered herself to the District Court to explain her absence.

Criminal records

27.  D1 has 4 criminal convictions but none similar.  He has not been imprisoned before.

28.  D2 has 12 criminal convictions 4 of which are Theft Ordinance offences though not burglary the last of which was in 2015.

29.  D3 has 9 previous convictions 2 of which were for thefts (both in 2013).

30.  D4 has 2 previous convictions none similar.  She has been imprisoned before.

31.  D5 has 2 previous convictions none similar.

Antecedents

32.  D1 is aged 20 (18 at the time of the offences), educated to F3, was a transportation worker earning a $20,000 salary.  He is the only child and lived with his relatives in public housing.

33.  D2 is aged 39 (38 at the time of the offences), educated to A-level in UK, was a casual transportation worker earning a $10,000 to $15,000 salary.  He is married with three children and before being remanded lived with family in Tai Kok Tsui.

34.  D3 is aged 24 (23 at the time of the offences), educated to P6 and completed vocational training, was a casual transportation worker with daily salary of $700 and earning about $13,000 per month.  He resided with his mother and maternal uncle in public housing in Shek Lei Pui.

35.  D4 is aged 20 (19 at the time of the offences), educated to F4, was a salesperson.  She resided with her mother, stepfather and two younger sisters in public housing in Shek Kip Mei.

36.  D5 is aged 25 (23 at the time of the offence), educated to high school level in the Mainland, was a cook earning $20,000 a month.  His parents are divorced and he was living alone in a guesthouse in TST.

Mitigation

D1

37.  Mr Frederick Fong of counsel assigned by the Director of Legal Aid mitigated on behalf of D1.  The following is a summary of the mitigation submissions.

38.  D1 is single.  His previous convictions were non-similar ones and were in 2015 when he was aged 14, and thus should be disregarded.

39.  Charge 2 involved items of little resale value which were offered to be returned on the same day.

40.  D1 is remorseful as evidenced by his frank admissions.

41.  Both premises involved were domestic premises.  The starting point for burglary of this type is one of 3 years’ imprisonment.  D1 pleads guilty in time and is entitled to 1/3 discount.  D1 seeks a lenient sentence and asks the court to take into account the totality principle.

42.  Upon seeing the DC/TC suitability report, D1 agrees to the report and accepts the recommendation therein.  Mr Fong added that D1 has been detained for 16-17 months already.

D2

43.  Ms Mandy Wong of counsel assigned by the Director of Legal Aid mitigated on behalf of D2.  The following is a summary of the mitigation submissions.

44.  D2’s two daughters (both 12) are F1 students while his youngest son (5) is studying in K3.  In 2015, D2 and his wife separated.  The wife left the family and became uncontactable.  All the children then came under the care of D2 with assistance provided by D2’s mother (50).  D2 was the sole breadwinner.

45.  The greatest mitigation is D2’s pleas.  No heavy housebreaking implements were used.  No property damage was made during the offences.  D2 was not disguising himself which shows the burglaries were not well-planned or premeditated.  D2 accepts that PW1’s loss of personal belongings caused great inconvenience and financial loss to him.

46.  Charge 2 is a prank.  D2 took the initiative to return the stolen property within 12 hours thus mitigating his misdeeds and causing no loss to the hotel.

47.  D2 has no previous for burglary and the last dishonesty-related conviction was in 2015.  D2 asks that he be not treated as a persistent offender.  He promises to turn over a new leaf on release.

48.  It is accepted that according to HKSAR v Ng Wai Hing [2003] 2 HKLRD 338, a burglary of a hotel room should attract at least the same sentence as that of domestic premises, and the sentence of 3 years is appropriate.

49.  D2 asks for a lenient sentence and asks the court to consider the totality principle.

50.  For Charge 1, there is nothing to suggest D2 was the leader of the burglary.

51.  For Charge 2, it is acknowledged that under caution, D2 said it was him who suggested that D1 and D4 to prank Tsoi by taking away the items from the hotel room booked by her.

D3

52.  Mr YC Yeung of counsel assigned by the Director of Legal Aid mitigated on behalf of D3.  The following is a summary of the mitigation submissions.

53.  D3 pleaded guilty to Charges 1 & 4.  Mr Yeung also referred to HKSAR v Ng Wai Hing, supra.  However, D3 asks the court to adopt a lower starting point than 3 years on the grounds that he did not have prior knowledge that the place was a hotel room; that there was no premeditation to burgle; and no tools, mask or gloves were used.  D3 asks that despite it was a multi-party burglary, a starting point of not more than 3 years would be sufficient because there was no prior agreement to burgle.  After referring to HKSAR v Cheung To Ming [2006] 2 HKLRD 259, Mr Yeung asks the court to consider that D3 was an opportunistic burglar on the basis that D3 only re-entered Room 1601 to steal after first exit when he had seen others had taken something from Room 1601.

54.  For Charge 4, D3 asks for a fine not more than in the thousands (which can be paid within 7 days), or alternatively, a short concurrent or substantially concurrent prison term.

55.  D3 asks for leniency.

D4

56.  Mr Chong Tin Chun of counsel assigned by the Director of Legal Aid mitigated on behalf of D4.  The following is a summary of the mitigation submissions.

57.  D4 pleaded guilty to Charges 2 and 5.  D4 has a son (8 months) and has been taken care of by social worker since birth.  D4 was addicted to ICE since 2018 and did not have a good relationship with her family.  It is submitted that D4 now has no drug addiction.

58.  D4 did not have any personal gain in Charge 2.  In relation to Charge 5, D4 simply forgot to attend court.

59.  D4 wants to have a career in taking care of toddlers and has completed half of an elementary toddler course.  D4 wants to get back her son after discharge and takes care of him herself.  Her parents are willing to help in that regard.

60.  Mr Chong also referred to HKSAR v Ng Wai Hing, supra.  Mr Chong referred to HKSAR v Lam Chi Kwan, CACC 105/2018, and submits that for a case of failing to surrender to custody lasting 10 years, the starting point was 6 months’ imprisonment.

61.  D4 is now a mother and wants to start a new leaf.  She has re-established relationship with her family.  Mr Chong asks the court to adopt a lower starting point than 3 years for Charge 2 on the basis that there was no invasion of a hotel tenant’s room, nor are there any particular aggravating factors.  D4 was not the mastermind.  All the stolen property have been returned and there was no loss to the hotel.

62.  On Charge 5, Mr Chong asks the court for a starting point of lower than 6 months on the basis that D4 did not willfully disobey a court order and the time was only 18 days.

63.  Mr Chong asks for concurrent or partially concurrent sentences after taking into account the totality principle.

64.  D4 submits a mitigation letter written by herself.  The contents generally are that the love and care extended by her mother caused her to realize the damage she has done to her mother and herself; that she asks for a lenient sentence so as to facilitate rehabilitation.

65.  Upon seeing the TC suitability report, except for one sentence, D4 agrees to the report.  Upon enquiry by the court, Mr Chong submitted that D4 did not know she was about 2 months into her pregnancy at the time of the burglary offence.

D5

66.  Mr Paul PS Leung of counsel assigned by the Director of Legal Aid mitigated on behalf of D5.  The following is a summary of the mitigation submissions.

67.  D5 pleaded guilty to Charge 1, the only charge he faces.  D5 has no similar records.

68.  D5 initially intended to help a friend D2 to collect a debt at the premises out of friendship.  Nonetheless, on arrival, D5 learnt it was not the case and he went ahead and followed the instructions of D2 without any reward or promise of reward.  D5 simply assisted D3 to climb into the hotel room.  D5 did not use any tools.  D5 did not keep any valuable stolen property.  D5 did not conceal his identity hence it could be said that it was an opportunistic offence without sophistication or premeditation.  D5 is fully remorseful which can be reflected by his full confession on arrest.  D5 will not reoffend.

69.  D5 knows that the starting point for a hotel room burglary was 3 years’ imprisonment.  D5 asks for a lenient sentence.

70.  D5 submits a mitigation letter written by his mother.  The contents generally are that a lenient sentence is asked for so that D5 could start afresh.

Detention and Training Centres Suitability Report on D1

71.  The conclusion on D1 is that he is mentally and physically fit for detention in a Detention Centre or a Training Centre; that he is considered more suitable for detention in a Detention Centre where he could undergo a period of strict disciplinary training followed by statutory supervision.

Training Centre Suitability Report on D4

72.  The conclusion on D4 is that since it is the Medical Officer’s opinion that D4 is a drug dependent and medically unfit to fully participate in the Training Centre programme, she is not considered suitable for detention in a Training Centre.

Sentence

73.  I have considered all the mitigation submissions.  I will not treat D2 as a persistent offender.  As regards D4, I do not accept the submission that she did not know she was pregnant at the time of the commission of the Charge 2 offence.

74.  The normal starting point for a hotel room burglary is 3 years’ imprisonment.  In this case, I cannot ignore the aggravating factor of more than one person acting in concert under both Charges 1 and 2.

75.  I have regard to the facts of the case including what were said by the defendants under caution.

76.  In respect of Charge 1, it does appear that the burglary was not pre-planned but on the other hand it was not opportunistic either.  In fact, particular effort had to be exerted in order to gain entry by climbing in through a window with the help of another person.  Fortunately, there was no damage to the window or lock of the premises.  I will adopt a lower basic starting point of 2 ½ years for this burglary charge.  For the aggravating factor of acting in concert, I will add 3 months.  Although D2 appeared to be the convenor of the group for the purpose of collecting a debt, it is unclear from the objective facts who was the ringleader of the burglary.  So I will treat everyone as equal members of the joint enterprise.

77.  In respect of Charge 2, the fact that the relevant defendants pleaded guilty to the charge suggests that they admitted to having an intention to permanently deprive the owner of the property involved.  The motive appears to be, as least as far as D2 (who admitted under caution to be the instigator) was concerned, to get Tsoi into trouble.  The decision to return the stolen property only came at a later stage.  I am satisfied that the mastermind of this burglary was D2.  I take into account the fact that there was no damage to the hotel room and there was in the end no loss of property.  I will again take 2 ½ years as the basic starting point.  For the aggravating factor of acting in concert, I will add 3 months.  As against D2 for his singular role, I will add a further 3 months.

78.  In respect of Charge 4 against D3 only, the offence does not carry an imprisonment penalty.  I will impose a fine of $1,000 after plea.

79.  In respect of Charge 5 against D4 only, I will adopt a low starting point of 4 ½ months.

80.  As against D1, because of his youth and because of a favourable Detention Centre Report, I am minded to order that he be detained in a Detention Centre.  I can see no mitigating factors which could persuade me to impose an even lighter sentence on him.

81.  All the other defendants will be entitled to a 1/3 discount on prison terms as a result of their timely pleas.  There are no other mitigating factors of sufficient weight to warrant a further reduction.

82.  D1, D2, D4 face more than one imprisonment term.  I will consider the principle of totality in their cases.  The offences are completely separate in their respective cases and hence the resulting sentences ought, subject to totality, to be served consecutively.

83.  I will impose the following individual sentences.

(All defendants, please stand)

D1

84.  For Charge 1, I order that D1, being a person apparently under 21 years of age, be detained in a Detention Centre.  For Charge 2, I make the same order.  The two sentences are to be served concurrently.

D2

85.  For Charge 1, D2 shall go to prison for 22 months.  For Charge 2, D2 shall go to prison for 24 months.  I order that 8 months of the sentence on Charge 2 is to be served consecutively to the sentence on Charge 1, making an aggregate sentence of 30 months’ imprisonment.

D3

86.  For Charge 1, D3 shall go to prison for 22 months.  For Charge 4, D3 shall pay a fine $1,000, to be paid within 7 days; and in default, D3 shall serve a term of 7 days’ imprisonment consecutive to his other sentence.

D4

87.  For Charge 2, D4 shall go to prison for 22 months.  For Charge 5, D4 shall go to prison for 3 months.  I order that one month of the sentence on Charge 5 is to be served consecutively to the sentence on Charge 2, making an aggregate sentence of 23 months’ imprisonment.

D5

88.  For Charge 1, D5 shall go to prison for 22 months.