HKSAR v. HO SAU LUN AND ANOTHER

DCCC 387/2021

[2021] HKDC 1303

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 387 OF 2021

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Reasons for Sentence

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1.  Both defendants entered a plea at the earliest opportunity and pleaded to one count of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.

2.  The particulars are that both on 31 October 2020 entered a café as trespassers at Shop 115-116, 1^st Floor, Hing Wah Plaza, Hing Wah Estate, Chai Wan and stole six mobile phones. 

3.  The 1^st defendant used to be employed at this café.  When she left, she kept a key. The staff at the café used Samsung smartphones for taking orders and on the evening of 30 October 2020, a staff member placed all six Samsung smartphones near the cashier desk before locking up.  The following morning at 5 am, the café was opened and the staff discovered all six smartphones were missing.  There were no signs of a break-in or ransacking of the premises. 

4.  CCTV footage from the Plaza from about 2 am showed the 1^st defendant wandering near the café, clearly acting as a lookout, whilst the 2^nd defendant unlocked the metal gate with a key and entered.  Other footage shows him putting on a pair of gloves inside the café before searching all the drawers and taking the six mobile phones.  Both defendants met up outside the café minutes later and left the Plaza together. 

5.  Later that afternoon, the 1^st defendant was intercepted by the police.  She was arrested with a key to the metal gate of the café on her person.  She admitted the burglary. 

6.  The 2^nd defendant was arrested at a pre-arranged meeting at the 1^st defendant’s address where the police were waiting for him. 2 of the smartphones from the café were found on his person. 

7.  Under arrest and under caution, he admitted entering the café with a key given to him by the 1^st defendant.  He said the 1^st defendant had asked him to take smartphones and any cash found from the café.  Whilst he was inside stealing, she, the 1^st defendant, acted as a lookout outside.  Both defendants admit that the 6 stolen smartphones were valued at around HK$12,000. 

Mitigation

8.  The 1^st defendant is 30 years old and has 3 previous convictions, all offences of dishonesty.  In 2011, she was convicted of handling stolen goods and in 2016, she was sent to drug addiction treatment centre for theft and attempted theft.  She is single but has 3 children from 2 previous relationships.  Her eldest child is 13 and living with the defendant’s grandmother.  She has two sons aged 7 and 9 who live in and are cared for by the Po Leung Kuk. 

9.  The 2^nd defendant has appeared before a court on 15 previous occasions in relation to 23 offences, mainly drug-related offences.  He is 35 years old, single, but has 7-year-old twins with a previous girlfriend.  He has not seen his children since he broke up with their mother.

10.  I have heard everything that can be said on behalf of both defendants in mitigation.  I have had a letter from the 1^st defendant where she blames the 2^nd defendant, her boyfriend, for taking advantage of her and abusing her trust by convincing her to commit this offence.  She is remorseful and sad that her elderly grandmother has a responsibility for her own child. She asks for leniency. 

11.  Mr Hung for the 1^st defendant says she did not keep the key with an intention to burgle the premises but it was the 2^nd defendant who suggested he use the key to enter and steal in order to settle some of his debts.  She agreed because she was in a relationship with him at the time.  It was not a premeditated offence. 

12.  Mr Keung for the 2^nd defendant says he was a chef but has been unemployed for a couple of years.  When he was working, he would contribute money to his mother for living expenses.  His parents divorced when he was young and he has no recollection of his father.  Although he has a poor criminal record, he has no previous convictions for burglary. 

13.  The best mitigation for both defendants is their plea of guilty at the earliest opportunity. 

Reasons for Sentence

14.  The usual starting point for a single offence of burglary of non-domestic premises is 2 years and 6 months where there is no aggravating or mitigating factors.  I will not enhance the starting point for the 2^nd defendant’s appalling criminal record.  In addition, I do not find this an opportunistic burglary.  It was planned. 

15.  However, and despite everything said during mitigation, I do find there is an aggravating factor and that is the 1^st defendant acted together with the 2^nd defendant to commit this offence.  There were two of them.  I will enhance that usual starting point by 3 months. 

16.  As I have said, both defendants entered their plea at the earliest opportunity and will benefit from a full one-third discount.  After that discount is applied to a starting point of 2 years and 9 months, both defendants are sentenced to 1 year and 10 months’ imprisonment.