HKSAR v. LEE HO KONG AND ANOTHER

DCCC 74 & 554/2020

(Consolidated)

[2021] HKDC 937

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 74 & 554 OF 2020

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REASONS FOR SENTENCE

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1.  D1 entered a timely plea to one charge of “Burglary”, contrary to section 11 of the Theft Ordinance, Cap. 210 (Charge 1).

2.  D2 pleaded not guilty to “Burglary”, contrary to section 11 of the Theft Ordinance (Charge 1)  and pleaded guilty to “Failing to surrender to custody without reasonable cause”, contrary to section 9L of the Criminal Procedure Ordinance, Cap. 221 (Charge 2). His case was so adjourned for trial.  D2 changed his plea on charge 1 before the first day of trial before Judge Casewell.  His case is so reverted before me for sentence.

THE FACTS

Charge 1 (Burglary)  (against D1 and D2)

3.  “Nine Bird Frog Antiques” (the Shop)  was a commercial sales outlet located at Shop 118 of a shopping mall named Place Two of 15 Cheung Shun Street, Cheung Sha Wan, Kowloon.

4.  At 9:02 pm on 1 December 2019, the Shop owner closed business of the day.  She locked the Shop entrance grille gate on the shopping mall public corridor.  She confirmed that at that time five watches of various brands, all belonging to the Shop, valued total at HK$17,100, were left on a desk inside the Shop close to the entrance grille gate.

5.  The aforesaid watches were found missing when the Shop was opened for business at 12:30 pm next day.

6.  The CCTV system of the shopping mall accurately captured the following footages of 1 December 2019:-

- at 2107 hours, D1 and D2 walked past the Shop in the public corridor outside. They doubled back to the Shop, looked inside through the gate grille or the glass panel next to the gate for some 20 seconds, then walked away.

- at 2110 hours, D1 and D2 returned to corridor position outside the Shop. They stayed there for about 1 minute 15 seconds before walking away. During their stay both D1 and D2 looked around in the vicinity.

- at 2117 hours, D1 and D2 walked past the Shop, this time without stopping.

- at 2120 hours, D1 and D2 returned to the Shop. D1 knelt down in front of the Shop, put his right arm through the grille, reaching inside the Shop and took some items out, meanwhile D2 looked on. They then left in a hurry.

7.  The CCTV system installed inside the Shop also accurately captured footages of D1 kneeling down, reaching inside the Shop through the grille with his right arm, as well as leaving with D2 afterwards.

8.  On 3 December 2019, police arrested D1 in relation to this case.  Under caution, D1 remained silent.

9.  On 27 April 2020, police arrested D2 in relation to this case.  Under caution, D2 remained silent.

10.  As recorded on the CCTV footages, D1 and D2 entered the Shop as trespassers and stole the five aforesaid watches from therein.

Charge 2 (Failing to surrender to custody)  (against D2 only)

11.  On 29 May 2020, D2 attended hearing at the West Kowloon Magistracy in relation to the burglary case.  The court adjourned to 19 June 2020 for transfer papers and granted bail to D2.  However, D2 failed to turn up on the said date.

12.  On 30 June 2020, D2 was arrested.  Under caution, D2 said he had forgotten to attend court on 19 June 2020.  

13.  D2, being a person admitted to bail, failed to surrender to custody as had been appointed by a court without reasonable cause.

CRIMINAL RECORDS

14.  D1 has appeared before the court on 28 previous occasions in respect of 32 offences. Among other things, five of those were for burglaries and twelve for theft.  His last theft conviction was on 2 January 2020. Immediately after gaining his liberty for about five odd months, he committed this offence.

15.  D2 has appeared before the court on 20 previous occasions in respect of 45 offences. He has convictions of various offences including drug offences, 31 dishonesty related offences and 1 burglary.  He was released in October 2019 after serving sentence for his conviction of a burglary offence. That means he committed the present burglary offence about two months after his release from prison.

MITIGATION AND PERSONAL CIRCUMSTANCES

D1

16.  D1 was born in Hong Kong. He is 40 years old and married with two daughters aged 15 and 7 years old.

17.  D1 is deeply remorseful and pleaded guilty at the earliest opportunity.

18.  On the night of the offence, D1 and D2 were strolling around the shopping mall when they noticed a gap in the entrance gate of the Shop. It was of greed and desperation from the fact that D1 had been recently laid off, he and D2 decided to steal from the front display of the Shop.

19.  Ms Yap submitted that the burglary was purely opportunistic. As agreed in the summary of facts, the CCTV footage showed he and D2 walking past the store front, then turning back to look more closely at the front display and walking around and observing the surroundings before reaching inside the Shop to steal the watches. No tools were used nor was there any other rummaging around the Shop front. The entire series of events, from noticing the items on display to the stealing of the watches, lasted just under 15 minutes.

20.  In HKSAR v Cheung To Ming [2006] 2 HKLRD 260, the appellant was convicted of burglary involving the theft of 2 packets of instant noodles.  The Court of Appeal found that a starting point of 18 months’ imprisonment appropriate, viewing him as being in the same position as “sneak thief” who was able to enter the premises after it had already been broken into.

21.  In HKSAR v Law Tin Yam CACC 258/2010, the appellant had stolen a pack of cigarettes from his neighour who occupied an adjoining cubicle in the same flat.  The cubicle was unattended and unlocked. The Court of Appeal considered that it had been correctly held that the burglary was opportunistic in nature. The Court substituted the original sentencing starting point of 2 years’ imprisonment with a starting point of 15 months’ imprisonment.

22.  Lastly, D1 offered assistance to the authorities by giving a non-prejudicial statement against a co-accused D2 and expressed his willingness to testify against D2.

D2

23.  D2 is 43 years old. His wife is in China.  He worked as a part-time construction worker earning about $800 per day. However, it was getting more difficult to have sufficient work.  He turned homeless eventually.  He committed the burglary offence due to financial problem.

24.  Mr Jim for D2 submitted that the burglary offence was opportunistic in nature and asked for a lower starting point.

SENTENCING CONSIDERATIONS

25.  The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there is no aggravating or mitigating features is 2 years and 6 months’ imprisonment.

26.  The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find, as in HKSAR v Sim Ka Wing CACC 450/2000. 

27.  In sentencing, I take into account the whole circumstances of the case, including its nature and facts, personal background of D1 and D2 as well as mitigation put forward on their behalf by their counsels.

28.  I do not agree that the burglary was opportunistic one. Although the grille of the Shop was not broken into, D1 and D2 hanged around in the area for 13 minutes, waiting for opportunity to steal. This was not burglary where the defendant passed by an open door and stole food or items of little value. D1 and D2 walked past the Shop for three times.  It was only on the fourth time, D1 reached his hand into the grille gate to steal. The acts were premeditated, skilfully executed and deliberate. D2 acted as a lookout.

29.  Besides, the 5 watches are of substantial value at $17,100.

30.  I adopt a starting point of 30 months’ imprisonment.

AGGRAVATING FACTORS

31.  I regard the factor that the D1 acted together with D2 as aggravating feature. I therefore enhance the sentence by 3 months. Both D1 and D2 have appalling criminal records.  They committed the present offence few months after their last release. Yet, both were undeterred and chose to commit the burglary within a relatively short time after their release. For this aggravating factor, I will enhance another 3 months.

32.  In the end, I will take 36 months as the starting point (30+3+3)  for charge 1 for both defendants.

SENTENCE FOR D1 (Charge 1)

33.  D1 pleaded guilty to Charge 1 on 27 August 2020.  In view that D2’s not guilty plea to the burglary charge, D1 indicated that he is willing to give evidence against D2 in his trial. For this reason, Ms Yap has applied bail on his behalf on 12 January 2021.

34.  Having considered that D1 is likely to have served his sentence by time D2’s trial is concluded, D1 was so granted bail on stringent terms on 12 January 2021.  I told D1 that his case be adjourned till today for sentence. I reminded D1 that had he failed to turn up on day for sentence, he may face an additional charge of breaching of bail conditions.  However, D1 failed to turn up today.

35.  Mr Wong for Prosecution informs the court the police had made enquiries with the public hospitals.  There is no admission record for D1. Mr Wong also told that court that D1 never complied with the reporting conditions to police station that the court had ordered.

36.  Ms Yap for D1 informs the court that D1 is aware of today’s hearing as the solicitor firm had reminded of his court attendance yesterday. She also told the court that she has finished mitigation on D1’s behalf.

37.  Having considered the whole circumstances, I am satisfied that D1 deliberately not turning up to court. With no objection from Ms Yap, I would pass sentence for D1 today.

38.  Though D2 pleaded guilty on his own initiative, D1 should still be afforded a discount from his sentence in respect of assistance he has rendered to the authorities. His assistance to the prosecution, including giving a non-prejudicial statement against a co-accused D2 and such assistance resulting in D2 pleading guilty.

39.  The sentencing principles in relation to assistance to the authorities has been extensively canvassed and explained by the Court of Final Appeal in Z v HKSAR (2007)  10 HKCFAR 183. The Court stated:

“23. … It has applied a usual discount of 40% (including the one-third reduction for a guilty plea)  for an appellant who had provided assistance to the authorities without testifying against those about whom they had provided information. HKSAR v Y [2005] 3 HKC 337 at p.340. (Compare its earlier decision in HKSAR v Ng Shek Yu (unrep., CACC No 178 of 2000, [2001] HKEC 243)  referring to a discount of between 40% to 45% as usually appropriate in such circumstances.)  Where an appellant had not only given information but had proceeded to give truthful and material evidence, the Court of Appeal has given a usual discount of 50% (including the one-third reduction for pleading guilty). HKSAR v Lee Yat Fan (unrep., CACC No 414 of 1999, [2001] HKEC 662). …”

40.  In these circumstances, D1’s assistance merits some reduction.  I am satisfied that D1 is entitled to a discount from the enhanced starting point of 36 months’ imprisonment to 20 months’ imprisonment. It amounts to 44.4% reduction.

41.  In view of D1’s absence for court today, I issue warrant of arrest with no bail. Estreatment of bail money $10,000 be reserved.

SENTENCE FOR D2 (Charge 1 and 2)

42.  D2 entered a plea of guilty for Charge 1 before the first day of trial before Judge Casewell.  

43.  I have considered HKSAR v Ngo Van Nam CACC 418/2014, the revised discount of sentence for pleas of guilty should apply in this case. I would adopt 25% discount.  Therefore, the sentence is reduced from 36 months to 27 months upon his plea.

44.  For the second charge of failing to surrender to custody without reasonable cause, the maximum sentence for an offence is 12 months' imprisonment on conviction upon indictment. I am of the view that a starting point of 3 months' imprisonment for the second charge is appropriate. It is a timely plea.  There should be a customary reduction of one-third to 2 months' imprisonment on account of the guilty plea. The sentences on both charges should run consecutively.

45.  The total sentence of D2 should be one of 29 months’ imprisonment.