HKSAR v. WU YUK SING

DCCC 600/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 600 OF 2015

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REASONS FOR SENTENCE

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Introduction

1.  On 3 November 2015, the defendant pleaded guilty to two burglary charges preferred against him under section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

Facts of the case

2.  Ms Chow, a proprietor of a trading business, rented a subdivided unit at Room C, Mezzanine Floor, Tung Lok House, Nos 76-78 Jockey Club Road, Shek Wu Hui, Sheung Shui, New Territories, in which to store 157 second-hand iPads (valued at $1,380 each) and 100 brand new iPads (valued at $3,600 each).  On 22 April 2015, the iPads were checked and secured inside Room C; but on 26 April 2015, they were found to have gone missing.

3.  What happened was this.  On the evening of 22 April 2015, the defendant, who lived at the room adjacent to Room C, placed a delivery order with a light goods vehicle driver Mr Chan via a Smartphone App “GoGoVan”. Later, Mr Chan arrived at Tung Lok House and met the defendant, who opened the main door of Room C with a key and asked him to take from Room C a quantity of iPads for delivery to Sin Tat Plaza, Mongkok.  Upon arrival there, Mr Chan unloaded the iPads, and the defendant paid him $2,300. (Charge 1) 

4.  On 26 April 2015, the defendant was arrested at a hotel where he had been staying since 23 April 2015.  Under caution, he admitted to the offence in Charge 1, saying that he knew Room C was a storeroom and that his own key could open its door.  He added that he sold, in Mongkok, the 30 iPads he took from Room C for $80,000, and then returned to Tung Lok House in the early hours of 23 April 2015.  Representing himself to be the occupant of Room C, he instructed another driver via “GoGoVan” to remove from Room C the remaining cartons of iPads.  He sold one carton of iPads at Mongkok and had the rest stored at a mini-warehouse at Yau Tong.  He paid the driver $2,300. (Charge 2)   

5.  Upon his arrest, the defendant was found to have $3,190 cash and had paid the hotel a deposit of $13,468.70; he admitted under caution that the latter sum represented part of the proceeds from the disposal of Ms Chow’s iPads.  It was the defendant who led the police to the mini-warehouse where 172 iPads were recovered.    

Mitigation

6.  The defendant is 28 years old.  He has been educated up to Form Three level and has worked as a waiter, chef, real estate agent, and delivery worker, but was unemployed at the time of the offences.  He has eight records of criminal convictions involving 11 offences, including two thefts and one attempted obtaining property by deception.  Since late 2009, he has served short sentences of imprisonment for various offences.

7.  In mitigation, Ms Suzanne Sim appearing for the defence revealed to the court that the defendant was brought up in a foster family.  His adopted parents, both aged persons now, had looked after him since he was half a year old.  His adopted father now suffered from poor health. According to the defendant’s adopted mother, the defendant was diagnosed at seven or eight to be hyper-active and mildly autistic and to have learning disabilities.  The defendant submitted that the present convictions represented his first convictions of burglary, which had taken place at non-domestic premises.  He pleaded guilty to express remorse and stressed that he had co-operated with the police: but for his confession, the police investigation into the second offence might never have borne fruit, and the 172 iPads might never have been recovered.  In addition, the defendant was willing to compensate the victim to the fullest extent possible. 

8.  The defendant referred to HKSAR v Sim Ka Wing[1] and submitted that the conventional starting point of two and a half years’ imprisonment for burglary committed in non-domestic premises had already taken into account some degree of planning[2]. He invited the court to consider there had been no aggravating circumstances in his case, failing which he would ask the court to accept that the so-called planning and pre-meditation exhibited in his case were haphazard in nature, improvised as they were as the offences unfolded, and that the steps taken by the defendant had been accomplished easily. 

Reasons for sentence

9.  The burgled room should, as the prosecutor Mr Ivan Shiu has fairly conceded, be considered as non-domestic premises: first, it was used for storage; and secondly, the defendant knew that Room C was a storeroom, so it must follow that he would have had no intention to burgle a dwelling. 

10.  In Sim Ka Wing’s case, the authority relied on by the defence, the Court of Appeal said:-

“ …… The conventional starting-point can be lowered in the case of opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find. Likewise, the conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value. …”[3]

11.  The defendant in the instant case was not a professional burglar, the present burglary convictions against him being the first of their kind.  But the goods involved were of considerable value, namely in excess of $576,000, and the agreed facts showed that they could be resold relatively easily for significant gains.  Further, he committed the two offences with that degree of planning and pre-meditation going beyond a normal non-domestic burglary.  He did not simply remove that number of iPads that he could physically take away by himself; he arranged for a light goods vehicle to take the iPads for sale in Mongkok and to deliver the remainder to a mini-warehouse for safekeeping.  The second offence was obviously more serious than the first, in that a mini-warehouse was rented to store the 172 iPads so that the defendant could – this is obvious – sell them as and when he wished, or as and when a buyer could be located.  In short, but for his arrest, the defendant would have engaged himself in criminal activities in furtherance of the 2^nd burglary for some time to come.  That the defendant’s criminal acts had been accomplished with relative ease was clearly due to the ready availability of delivery services via “GoGoVan” and of mini-warehouse storage, the improper or wrongful use of which showed rather that the defendant was just streetwise; this can in no way go towards mitigating the seriousness of his crime.  In addition, there was multiplicity of offences, albeit committed in the same premises.  In these circumstances, an upward revision of the conventional starting point by two to three months seems prima facie in order. 

12.  That said, an offender should be encouraged to co-operate with the authorities and to reduce, where possible, the loss or harm to the victim.  In this case, there was, as Ms Sim pointed out, a valid mitigation, namely the police investigation into the second offence might never have come to fruition but for the defendant’s confession, and the 172 iPads (which constituted a significant portion of the stolen property) might never have been recovered. 

13.  The defendant was not a person of good character and could not be sentenced on the basis of a person with a clear record.  A handwritten letter of his was handed up to court explaining his personal background, in particular to the fact that he had been raised as an adopted son by a kind-hearted couple.  Little in his personal background afforded significant mitigation; in the court’s view, the defendant should have treasured his second chance in life afforded him by his foster parents, rather than to cause them distress and suffering by transgressing the law.

14.  The prosecution advised that the victim would not accept a sum below $150,000 as compensation for her loss; nothing, however, was placed before the court in support of that figure.  It seemed clear therefore that the loss was far from liquidated.  In any event, information available to the court did not appear to support the proposition that the defendant would have the financial strength to make payment of that sum and the court should guard against the situation where the burden to make payment pursuant to a compensation order might befall a person other than the defendant himself.  In the event, no compensation order is made.  In so far as the two sums which the police seized upon the defendant’s arrest are concerned, the parties have agreed that the hotel deposit could be dealt with by an appropriate order pursuant to section 102 of the Criminal Procedure Ordinance, Cap 221.  In sentencing the defendant, the court notes the defendant’s wish to compensate the victim to the fullest extent possible. 

15.  In all the circumstances, the appropriate starting point is two and a half years’ imprisonment for each of the two offences in Charges 1 and 2.  The defendant is entitled to one-third discount for his guilty pleas; the sentence for each charge is reduced to 20 months’ imprisonment.  An additional reduction of two months is given to the defendant on account of the excess mitigation identified above, resulting in a term of imprisonment of 18 months for each charge.  The two offences can, validly still, be considered as part and parcel of the same transaction or enterprise by reason of their nature and of the place and time at which they were committed.  Having regard to the totality principle, it is ordered that the sentences in respect of the two charges be served concurrently.

Conclusion

16.  For the offences in Charges 1 and 2, of which the defendant stands convicted, he is sentenced to 18 months’ imprisonment.