HKSAR v. WONG KAM-KWAI AND ANOTHER

DCCC 502/2020

[2020] HKDC 1101

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 502 OF 2020

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  There are 4 charges in the Charge Sheet.

2.  Each of Charges 1, 2 and 4 is for the offence of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.  Charge 1 is against D1 only.  Charge 2 is against both D1 and D2.  Charge 4 is against D2 only.  D1 pleads guilty to Charges 1 and 2, while D2 pleads guilty to Charges 2 and 4.  They also admit the summary of facts prepared by the prosecution.

3.  Upon conviction of D1 and D2 of the charges to which they have pleaded guilty, this Court pursuant to the agreement of the prosecution and D1 orders Charge 3 against D1 (which is also for the offence of burglary) to be left on the Court file, and not to be proceeded with unless with the leave of this Court or that of the Court of Appeal.

Facts

Charge 1 (D1)

4.  This burglary offence took place inside the temporary office on the first floor of a building under construction at No. 201 Hai Tan Street.  On 8 March 2020 at 5:15 p.m., a construction worker Mr. Kuang put his tools including one concrete test hammer, one pneumatic staple gun, one hydraulic drill, 10 batteries and 4 chargers inside a metal tool box, and locked up the metal box with a password-protected padlock.  He then left the metal tool box inside the temporary office, locked up the entrance to the temporary office by another password-protected padlock, and left.  He returned to the temporary office on 9 March 2020 at 8:30 a.m.  He found the padlock locking the entrance missing, the padlock locking his tool box damaged and lying on the ground, while the metal tool box was broken open with all the tools inside missing.

5.  CCTV footage showed that a masked man wearing a cap entered the temporary office at 3:58 a.m. and left at 4:30 a.m. on 9 March 2020.  This man was D1.  D1 was arrested by the police on 24 March 2020.  When D1 was cautioned for this offence, D1 admitted that he had already sold all the tools that he had stolen.

6.  The stolen working tools and the missing padlock had a total value of HK$31,380.  The damaged padlock was valued at HK$30.

Charge 2 (D1 and D2)

7.  This burglary offence took place inside the tool room on the first floor of a building under construction (Tower 3) also at No. 201 Hai Tan Street.  On 20 March 2020 at 5:32 p.m., a curtain-wall subcontractor Mr. Cheng stored his tools including 3 steel batches, 4 grinders, two hydraulic drills, one concrete test hammer and one backpack inside the tool room.  He locked up the entrance of the tool room by a password-protected padlock and left.  He returned on 21 March 2020 at 8:15 a.m.  He found the tool room having been ransacked, and his tools missing.  He was told that the padlock at the entrance had been unlocked.

8.  CCTV footage showed that two men, i.e. D1 and D2, entered the construction site at 4:20 a.m. and left at 4:33 a.m. on 21 March 2020.  Under caution for this offence, D1 admitted that he had already sold all the tools stolen, while D2 admitted that he committed this case and that the items had all been sold.

9.  The total value of the stolen tools was HK$20,100.

Charge 4 (D2)

10.  On 24 March 2020 at around 00:30 a.m., two police officers on patrol noticed D2 and another male acting furtively and kept them under observation.  They saw D2 and that male enter a building under construction near the junction of Fat Tseung Street West and Sham Mong Road.  The two police officers then conducted a search and found D2 inside a security control room of the building.  At that time, D2 was wearing gloves and a cap.  D2 also had with him a green nylon bag containing one electrical drill, two grinders, one electrical screwdriver and 6 batteries.  One of the officers arrested D2.  Under caution, D2 admitted that he had entered that place with another person but they then acted separately.  He also admitted that he had stolen the tools inside the nylon bag. 

11.  In a subsequent video-recorded interview, D2 admitted that he entered the construction site with another male to steal tools for resale, and that he used a nylon bag found inside the storeroom to stash and take away the stolen tools.

12.  The tools stolen by D2 were previously stored inside a storeroom within the security control room by a Mr. Hui who worked as a construction worker there.  When Mr. Hui returned to the security control room on 24 March 2020 at 8:15 a.m., he discovered that the door lock to the storeroom was damaged, and that the metal hinges of two tool boxes which were also kept in the storeroom had been cut and damaged.  The value of the stolen tools was HK$20,000.  The cost of repairing the damaged metal hinges of the two tool boxes was HK$1,000.

Criminal record

13.  D1 had appeared in court on 26 previous occasions between March 1990 and May 2020 when he was sentenced for a total of 28 offences, 17 of which were for offences of dishonesty, including 5 offences of burglary or attempted burglary.  The last sentence for his burglary conviction was imposed in May 2013 when he was sentenced to imprisonment for 3 years and 6 months.  After this burglary conviction, he was sentenced on two more occasions.  On 18 October 2017, he was sentenced to 8 months’ imprisonment for possession of dangerous drugs.  He was discharged from prison on 10 March 2018.  He was last sentenced on 25 May 2020 for street gambling and he was fined HK$700.

14.  D2 had appeared in court on 11 previous occasions between September 1989 and January 2019 when he was sentenced for a total of 12 offences, one of which was for an offence of dishonesty which was not burglary.  The other sentences were mostly for drug offences.  He was last sentenced in January 2019 to 9 months’ imprisonment for possession of dangerous drugs.  He was discharged from prison on 8 July 2019.

Personal and family background

15.  D1 is now 49 years old.  He was born on 28 May 1971 in mainland China.  He received education up to primary 6 in Hong Kong.  He had worked as a construction worker for the past 3 years and earned about HK$17,000 a month, but he had little work at the time of the offences because of the economic condition.  He is divorced.  Prior to his remand, he lived with his 20-year-old daughter who was unemployed.  D1 also lived with his elderly parents, and contributed HK$5,000 each month to them.  He had an operation for stomach cancer in 2017.

16.  D2 is now 53 years old.  He was born on 21 September 1967 in Hong Kong.  He received education up to Form 3 in Hong Kong.  Prior to March this year, D2 worked as a casual labourer in construction sites and earned HK$900 a day or around HK$10,000 a month.  He was unemployed at the time of the offences.  D2 is married but has already separated from his wife.  He has no child.  He lived with his mother who is 86 years old now.  He supported his mother and contributed HK$3,000 to HK$4,000 to her each month.

Mitigation

17.  Mr. Oliver Davis, Counsel for both defendants, points out that in these offences, the defendants entered non-domestic premises to steal construction tools.  There was no evidence of forced entry.  They committed these offences in early hours when nobody was present in the construction sites and no occupants would be exposed to any danger.  The value of the stolen goods albeit not minimal was not particularly large.  Hence, the offences were not the most serious of their kind.

18.  Mr. Davis also stresses that although each defendant has previous convictions, they had tried hard to stay away from trouble for a period of time after their last discharge from prison, and they would not have committed the present offences but for the current economic downturn caused by Covid-19.  D1 was the sole breadwinner of his family and had to earn money to support not only himself but also his elderly parents and unemployed daughter.  Likewise, D2 had to earn money to support himself and his elderly mother.

19.  Mr. Davis also points out that although D1 had received operation in 2017 for his stomach cancer, he is still receiving follow up treatment up till now, and that D2 has no previous conviction for burglary.  Mr. Davis also stresses that both defendants were fully co-operative with the police after arrest and both pleaded guilty at the earliest opportunity.  Mr. Davis asks for the most lenient sentence for the defendants so that they can take care of their respective families as early as possible.  Mr. Davis also says that D1 wishes to be released soon because his long-time girlfriend has just been diagnosed to have intestine cancer. 

20.  Mr. Davis submits a letter written by D1’s employer who says that D1 committed the offences because of huge financial pressure.  D1’s employer pledges to employ D1 again after D1 has served his sentence and pleads for leniency for D1. 

Reasons for sentence

21.  Burglary has always been regarded by the courts in Hong Kong to be a very serious offence.  For this reason, 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 even if the defendant pleads guilty and has a clear record: HKSAR v Wong Yiu Kuen[1], HKSAR v Po Yan Chuen[2], and HKSAR v Wan Ka Kit[3].

22.  I have considered the facts of each charge and the mitigation urged upon me for each defendant.  Despite their guilty plea, there is simply no ground for departing from the normal sentencing tariff.  The proper sentence to be imposed on each defendant is imprisonment.

23.  As far as the length of the sentence is concerned, since the three burglary offences took place inside non-domestic premises, the proper starting point is 2½ years’ imprisonment according to the tariff laid down by the Court of Appeal: The Queen v Wong Man[4], Attorney General v Lui Kam Chi[5].

24.  In my view, there is no valid justification to depart from the normal sentencing tariff.  I adopt 30 months’ imprisonment as the starting point for each charge for each defendant.

25.  In HKSAR v Cheng Wai Kai [6], the Court of Appeal pointed out that the starting point could be adjusted upward if there were aggravating circumstances which would include:

“(1)  the offence is carefully planned and skillfully executed involving the use of heavy instrument or equipment;

(2)  the offence is committed by two or more people;

(3)  the offence targets at 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 conviction of similar nature, and

(6)  the offender commits multiple offences.”

26.  In this case, while the offences committed by each defendant cannot be said to be opportunistic, I accept that there is no evidence of careful planning for each of the offences committed by them.  Nor is there evidence that each defendant targeted at substantial premises and involved substantial property.  There is also no evidence of use of any heavy instrument or equipment. 

27.  Mr. Davis submits that there was no evidence of forced entry into any of the construction sites. Even so, the agreed facts show that the tool boxes involved in Charges 1 and 4 had been forced open to facilitate stealing of the tools inside.  But I accept that damage of this kind is not particularly serious and that it does not elevate the gravity of each offence in this case to a level above and beyond the gravity of a routine burglary offence.  For this reason, the starting point for each sentence will not be enhanced on this ground.  I also accept that value of the stolen goods in each charge does not call for an increase in sentence.

28.  On the other hand, D1 had 5 previous convictions for the offence of burglary and attempted burglary.  His record may constitute an aggravating factor, but the sentence for his last burglary offence was imposed in May 2013.  While it is not known exactly when he was discharged from prison for that sentence, it can be safely assumed that he did not commit the same offence after his discharge for 7 years or more.  For this reason, I decide not to increase his sentence on the basis of his criminal record. 

29.  D2 also has previous criminal records, but this was the first time he committed the offence of burglary.  On this ground, I shall not increase his sentence on account of his criminal record.

30.  As to the number of offenders, it is an admitted fact that Charge 2 was committed by D1 and D2 together.  According to Cheng Wai Kai, this constitutes an aggravating factor.  On this ground, I adjust the starting point of the sentence for Charge 2 against each defendant upward by 3 months to 33 months’ imprisonment.

31.  No similar adjustment will be made to the sentences for Charges 1 and 4.  The offence in Charge 1 was committed by D1 alone.  While D2 entered the relevant construction site with another person to commit the offence in Charge 4, D2 said under caution that after he had entered the construction site, he and the other male stole on their own.  There is nothing in the evidence to rebut what D2 had said.

32.  For the reasons just explained, unless there are grounds mitigating the sentences, D1 will serve a term of 30 months’ imprisonment for Charge 1, and 33 months’ imprisonment for Charge 2; while D2 will serve a term of 33 months’ imprisonment for Charge 2, and 30 months’ imprisonment for Charge 4.

33.  As far as the mitigating factors are concerned, even if it is true that each defendant had to make money to support himself and/or his family members due to unemployment or insufficient employment caused by Covid-19, financial reason of this kind can only be regarded as an explanation why they committed the offences in question but it cannot and will not be regarded as a mitigating factor.

34.  Furthermore, the fact that the defendants have to go to prison with the consequences that they can no longer work to support their respective family members who will suffer hardship as a result cannot be regarded as mitigation.  Because of their previous convictions, it must be that they knew full well at the time when they committed these offences that they would be sentenced to prison if they were convicted.  Yet, they chose to ignore or belittle the hardship that their family members might suffer if they had to go to jail.  Under these circumstances, they cannot pray in aid family hardship as mitigating factor at the time of sentencing.  Likewise, D1’s wish to return to his long-time girlfriend who is suffering from intestine cancer now cannot be mitigation. Anyone who commits serious offences of any kind is running a risk that he will not be able to take care of his loved one if he is convicted.  D1 can only blame himself if he cannot leave prison early.

35.  The only real mitigating factor in this case is their guilty plea.  Each of them is entitled to the full one-third discount.

36.  For these reasons, I sentence the defendants as follows:

Charge 1	D1	Imprisonment for 20 months
Charge 2	D1	Imprisonment for 22 months
	D2	Imprisonment for 22 months
Charge 4	D2	Imprisonment for 20 months

37.  I shall next consider whether the two sentences for each defendant should run concurrently or consecutively, be it wholly or in part.  I shall consider the principle of totality which means that the overall prison term must not be too lengthy, but it must properly reflect the overall criminalities of the offences.

38.  For the two offences committed by each defendant, they were committed on different dates and against different victims.  Hence, it will be wrong to order the two sentences to run concurrently.  On the other hand, wholly consecutive sentence will be unduly long.

39.  In my judgment, the proper overall starting point for the two offences committed by each defendant is 42 months’ imprisonment. Upon their guilty plea, the proper overall sentence for each of them is 28 months’ imprisonment.  For this reason, I make the following orders.

40.  In the case of D1, I order that 8 months of the sentence to be served by him in respect of Charge 2 shall run consecutively to the sentence for Charge 1.

41.  In the case of D2, I order that 6 months of the sentence to be served by him in respect of Charge 4 shall run consecutively to the sentence for Charge 2.