HKSAR v. HO SIU KIN

DCCC 521/2020

[2021] HKDC 33

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 521 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to three charges in this case, namely, Charge 1 - Theft, Charge 3 - Burglary and Charge 4 - Burglary.

2.  According to the Amended Summary of Facts, the defendant rented a room in a guesthouse in Mongkok and the CCTV installed there revealed that the defendant had stolen the mobile phone of a staff of the guesthouse (PW1) from the drawer at the reception.  There were also the phone case and two cards (a credit card and an ATM card).  These items were the stolen properties in Charge 1.

3.  The two burglaries took place a few days later in a residential building in Yau Ma Tei.  PW2 was a resident on 10^th Floor and she found the defendant acting furtively at 3:40 am on 11 February 2020 when he was entering the subject room of Charge 4.  A report was made and the Police soon arrived.  The Police found the defendant ransacking the room at that moment.   

4.  Upon search, the Police seized the aforesaid phone case, the credit card and the ATM card from a waist bag carried by the defendant. The defendant was also carrying a Bluetooth speaker and a paper bag, inside which were 12 cans of coffee and a box of cookies (valued at around HK$250 in total).  These properties belonged to PW3 who was the resident occupying the room where the Police found the defendant.  Besides, the Police also found a bag at the lift lobby on 10^th Floor.  A glass of bottle, a plastic cup, a bowl, four red packets containing a total of HK$465.50, RMB11.50 and $0.50 Canadian dollars, a TV with an antenna and two caps were found inside this bag.  These were properties of the occupant of Room D1 on 5^th Floor in the same building (stolen properties in Charge 3).

5.  The defendant was arrested and cautioned.  Under caution, the defendant admitted, inter alia, that he had stolen the mobile phone and cards of PW1 as captured by the CCTV.  He had sold the mobile phone and kept the cards without having used any of them.  The defendant further admitted that he found the rooms unlocked and therefore entered the subject rooms to steal the respective stolen properties in Charges 3 and 4.

6.  The defendant has a long history of criminal convictions from 2007 to 2019 (on 18 occasions involving 27 conviction records) and all of them are theft related or involve dishonesty; 4 of these convictions are burglary. 

7.  In mitigation, the personal background and history of the defendant were disclosed at length.  It was revealed that the defendant is a patient of diabetes and he is “mildly mentally handicapped”.  He resided at the transitional accommodation provided by The Society of Rehabilitation and Crime Prevention, Hong Kong before the current remand and he had been receiving HK$2,100 CSSA per month in addition to what he could manage to earn from his part time job.

8.  For Charge 1, it was emphasized that the defendant was acting alone.  No weapon was used and no one was put on fear at the material time.  It was submitted that the defendant is prepared to repay the victim HK$2,000 and that is all he has for the time being.  Ms. Wong, counsel for the defendant had fairly accepted that the compensation is unrealistic and the prosecution submitted that there is no request for compensation from the victim.  Nonetheless, this offer should go to the defendant’s credit in mitigation even without an order of compensation because it shows that the defendant is somehow remorseful and is prepared to take responsibility of his misdeed.

9.  Regarding the burglaries, the defendant admitted that he had committed the offences out of greed.  The building was a residential building albeit that PW3 had used the room in Charge 4 to provide masseuse service.  It was emphasized that the value of the stolen properties is not high and that the victims did not suffer any monetary loss.  It was described that the defendant was not a “professional” burglar and the defendant was only taking advantage of the negligence of the occupants for their failure to lock the door.  Besides, Charge 3 would not come into light but for the admission of the defendant. 

10.  Ms Wong also relied on a number of mitigation letters and materials.  They have been fully and carefully considered. 

11.  Theft involving mobile phone carries particular seriousness.  In HKSAR v Liu Lin-feng CACC206/2011 (21 February 2012), the guideline of 12-15 months’ starting point for pickpocketing set down in HKSAR v Chiu Suet Yee Angel was referred to and the value of stolen property and the feature of stealing a mobile phone were considered both relevant and distinctive.  The Court of Appeal remarked that “iPhones and similar third-generation telephones are not only expensive items, easily sold on and difficult to trace once the SIM cards have been removed, invariably they contain large amounts of data of importance to the owner, data is both practical and sentimental.  Their theft therefore may well put their owners to a high degree of distress and inconvenience.” (at para 36)

12.  This case is not one of pickpocketing but the way the defendant had committed it remains serious.  The smartphone was about HK$8,000 worth and it has to be noted that the loss of mobile phone could have caused a lot of troubles to the victim and it is clear that, as in the present case, the accused was able to sell the mobile phone easily in a short period of time.  Charge 1 also involves credit card and ATM card of PW1.  Let us not forget that the defendant has a long history of theft-related criminal convictions and therefore a deterrent sentence is obviously called for.  I am of the view that a starting point of 12 months’ imprisonment is appropriate and the defendant is entitled to a 1/3 discount for his guilty plea.  The defendant is sentenced to 8-month for Charge 1.

13.  It is trite that the proper starting point for domestic burglary is one of 3-year even for a first offender.  Ms Wong, also acknowledged that in her written submissions.  The subject building was obviously residential and there is no dispute that this starting point should apply to Charges 3 and 4 regardless the use of the room PW3 had assigned for it. 

14.  In any event, in HKSAR v Ng Wai Hing CACC621/2012 (29 April 2003), the Court of Appeal acknowledged that “it may not be too helpful to decide if a hotel room should be categorized as domestic or non-domestic…  But the aggravating factor involved in burglary of domestic premises is certainly present in the case of burglary of a hotel room.” (see para 29).  This feature clearly exists in the present case and the 3-year starting point should be adopted accordingly.

15.  Furthermore, these two offences should be treated separately because after all, two different victims were affected.  Ms Wong did not seek to argue that a concurrent sentence should be imposed.  In HKSAR v Ngai Kai Leong CACC83/2016 (22 July 2016), Macrae JA was to deal with a 9-month consecutive element and was referred to Ng Wai Hing and HKSAR v Lau Hiu Man [2013] 2 HKLRD 862 in which a 4-month was ordered to be served consecutively.  His Lordship was of the view that “the quantification of the consecutive element between two burglary offences depends on the facts of the case and the seriousness of the individual substantive offences…  The consecutive elements adopted in each case as between the two burglary offences must be seen in their respective contexts.” (see para 22) 

16.  That said, the totality principle still has a role to play and credit should be given to the fact that at the time the burglaries were committed, no one was inside these rooms and this should be reflected in the sentence (see para 20-22 in HKSAR v Gurmeet Singh CACC329/2016 dated 28 June 2017 where the premises were vacant).  There is no evidence to suggest whether the defendant knew about this, nevertheless, the victims in this case did not suffer during the commission of the offence.  A reduction of 3-month to the starting point is given.  

17.  I also noted the value of the stolen properties and that these include food.  In that regard, I remind myself the case of HKSAR v Cheung To Ming [2006] 2 HKLRD 259 where a more significant discount was given to the accused on appeal because of the “most unusual circumstances” in that case.  However, those “unusual circumstances” do not exist in the present case before this court.  Only a 3-month reduction to the starting point should be given.

18.  At the risk of being repetitive, the defendant has a long, if not shocking, history of criminal convictions and a deterrent sentence is obviously called for.  In this case, the only appropriate sentence is one of imprisonment.  I am also of the view that 6 months should be added to the usual starting point for the burglary charges to reflect the feature of recidivism (see 6-month not excessive in HKSAR v Leung Chi Wai [2018] 5 HKLRD 237 [2018] HKCA 624).  

19.  Having carefully considered the facts of the present case and the mitigations put forward on behalf of the defendant, I am of the view that the following starting points are appropriate for Charges 3 & 4:-

(a)  Charge 3: 36 -3 -3 + 6 = 36 months’ imprisonment;

(b)  Charge 4: 36 -3 -3 + 6 = 36 months’ imprisonment.

20.  These sentences are each reduced to 24 months in light of the guilty plea.  They should be consecutive partially and having taken into account all the circumstances, I shall order that 4 months in Charge 4 be made consecutive to the sentence in Charge 3 making it a total of 28 months.  I further order that 5 months in Charge 1 should be served consecutively to the sentence of Charge 3.

21.  I see no further reduction nor is any other form of sentence is appropriate.  Therefore, the defendant is sentenced to a total of 33 months’ imprisonment.