HKSAR v. LI KA FAI

DCCC 213/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 213 OF 2017

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The defendant has pleaded guilty to one offence of theft and one offence of burglary. The offence of theft was committed on 1 October 2016 and the burglary on 9 November of 2016. The facts have been admitted, and I have convicted the defendant of both charges.

2.  In respect of the theft, the facts admitted contain the following.  The first prosecution witness placed various items such as his mobile phone and wallet and driving licence on a table inside a shop known as Eurasia Trading in Mui Wo in Lantau Island.  This was late in the evening of 30 September.  The shop was a form of stall, and the door of the stall was closed, and the first prosecution witness fell asleep on a chair inside that stall.   

3.  He woke in the early hours of 1 October and found that his mobile phone and wallet had gone missing.  On 4 October, the wallet was recovered nearby, near the stall.  The cash had gone missing.

4.  The defendant later confessed that he had gone into the stall, intending to buy something.  He had seen PW1 sleep and therefore stolen his wallet and mobile phone.  He threw the wallet away after he had taken cash from there and sold the mobile phone for $500, and he had spent all that money.   

5.  The burglary occurred at an office of the Environmental Protection Department in Mui Wo Ferry Pier Road.  The office was a garbage collection point.  It was surrounded by a wall and had a separate office building.

6.  At about 5.30 in the afternoon of 8 November 2016, that premises was secured.  When people returned on the next morning on 9 November 2016, they found that the windows on the premises bore prise marks and a window had been prised open, and a briefcase had been taken and that contained a laptop computer and some of its accessories. Also, some sunglasses had been taken.  

7.  A fingerprint was lifted from the window-frame of the window that had been prised open, and it was found to match the defendant’s fingerprints.  Defendant was located, and the sunglasses which had been taken from the premises were also seized inside his premises.

8.  The defendant admits in the facts that he entered those premises as a trespasser and sold the items set out in the charge.

9.  The defendant’s antecedents show that he is aged 42 years old.  He has a lengthy set of convictions which I will return to in a minute.  The defendant has been married but his wife now lives back in the mainland, and the defendant up to his arrest was living alone in Mui Wo on Lantau Island. 

10.  As far as the defendant’s record of convictions are concerned, there are a total of, sorry, 31 recorded appearances in court dating from 1990 and ending in 2016.  The defendant has committed a large number of offences of dishonesty such as theft, handling stolen goods and theft in a vehicle and been sent to prison on numerous occasions.  The defendant has committed offences of burglary before.  In fact, his first offence back in 1990 was a burglary, that from 2007 to 2010, the defendant was convicted of three separate burglaries, and in both 2007 and 2010 was sentenced to 2 years’ imprisonment for each.  The defendant’s most recent conviction of theft was in 2014 where he received a sentence of 6 months’ imprisonment.  So, as can be seen, the defendant has a lengthy history of criminality with numerous offences of dishonesty included in that list.

11.  As far as sentence is concerned, on the 2nd charge, there are guideline sentences for the commission of burglary such as that in what is a non-domestic premises, commercial premises, and the normal starting point for a person of clear record convicted after trial would be one of 30 months’ imprisonment. 

12.  The defendant of course would be entitled to a mitigating factor of his plea of guilty.  As far as the normal matters considered to be aggravating factors, the one most clearly pertinent is the defendant’s previous record for commission of offences of burglary.

13.  As far as the offence of theft is concerned, there is no tariff or guideline for this particular kind of offending.  The defendant would be sentenced on the basis he walked into the premises not as a trespasser but stole the items from the table where they had been left, opportunistically taking advantage of the fact that the victim was asleep.

14.  Now, turning to the defendant’s mitigation, the defendant has admitted these offences from an early stage, at the time of his arrest.  He undoubtedly committed the offences on his own.  The first offence involved elements of being opportunistic.  As far as the offence of burglary is concerned, although there was prising to the windows, there was no other ransacking of the premises.  The defendant is said to be remorseful and has shown a timely plea.  The total amount of goods that were stolen in the two offences amounted to about some $17,000.  I am told the defendant is not in a position to make any compensation.

15.  My approach to sentence will be as follows.  On the 1st charge, that is the charge of theft, I do take into account this is an opportunistic type of theft.  But the defendant is a repeat offender in an offence of dishonesty.  I will take what I call a normal starting point of 9 months’ imprisonment for this theft and add 3 months’ imprisonment for the defendant’s previous convictions which show a failure of deterrence in the past. 

16.  Now, on the 1st charge, therefore the starting point is one of 12 months’ imprisonment.  The defendant has pleaded guilty.  He is entitled to one-third discount from that.  The sentence on the 1st charge will be one of 8 months’ imprisonment.

17.  And the normal starting point on the 2nd charge will be one of 30 months’ imprisonment.  There is the aggravating factor of the defendant’s previous similar convictions and the last of which was in 2010, and the defence make the point that it is some seven years that the defendant has not been convicted of such an offence.

18.  However, the fact of the defendant’s conviction for this offence again shows the failure of previous sentencing for burglary to deter him from committing this particular offence.  But I do take into account that the level of aggravation is tempered by the fact the defendant has not been convicted of such an offence for some period of time.  In order to reflect that fact, I shall take a starting point for sentence on the 2nd charge of 33 months’ imprisonment which, after deduction for the defendant’s plea of guilty, leads to a sentence of 22 months’ imprisonment on the 2nd charge.

19.  These offences were committed on separate occasions and so of course can be served consecutively.  I do have to consider what is considered to be the appropriate overall sentence of imprisonment for these two offences and then adjust the amount to be served accordingly.  I consider the defendant’s overall total sentence should be one of 27 months’ imprisonment.  I shall achieve that by ordering that 5 months of the 1st charge be run consecutively to the 2nd charge and the balance concurrently.