HKSAR v. CHOI KWONG CHI

DCCC 58/2018

[2018] HKDC 613

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 58 OF 2018

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REASONS FOR SENTENCE

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1.  Defendant Choi Kwong Chi pleaded guilty before me to one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.  The particulars of offence are that Choi Kwong Chi, on  28 October 2017, in Hong Kong, having entered as a trespasser part of a building known as Flat I, 14^th Floor, Lucky House, Nos 20-24 Jordan Road, Yau Ma Tei, Kowloon, stole therein one handbag, one People’s Republic of China Identity Card, one People’s Republic of China passport, two People’s Republic of China Exit/Entry Permit for Travelling to and from Hong Kong and Macau, cash of $3,500 Hong Kong currency, cash of ¥300 Renminbi, cash of $50 United States currency, 11 bank cards, one social security card, two notebook computers, 3 car keys and one rucksack.

Admitted Facts

3.  The facts admitted by Mr Choi may be summarized as follows.

4.  PW1(male) and PW2(female) were travellers from Shanghai.  They temporarily resided at the subject premises which they rented online for a daily rent.  On 27 October 2017, they returned to the premises without closing the iron gate or locking the door behind them.  They woke up the next morning (28 October) and found their property specified in the particulars of offence missing.

5.  The total value of the stolen property amounted to RMB41,900, HK$3,500 and USD50.

6.  Case was reported and the police arrived the same day and viewed the CCTV installed at the building. In the evening of the same day, an officer stopped Mr Choi because the latter resembled the suspected burglar captured in the footage.

7.  Under caution, Mr Choi said that:-

(a) That morning, he saw a flat on the 14/F of the subject building was not locked, so he stole 2 computers and 2 bags therein out of greed;

(b) The items inside the bags were not useful so he threw the items away; and

(c) He could not recall where he threw away the items.

8.  On 29 October, a house search of Mr Choi’s rented flat at a Ma Bo Villa nearby recovered PW1’s and PW2’s two-way permits, PW2’s PRC ID card, one of her ATM cards and her handbag.

9.  Under further caution, Mr Choi said that:-

(a) He would now return the recovered property;

(b) He had sold the 2 stolen computers to a man in Sham Shui Po; and

(c) He could not locate nor recognize that man.

Criminal record

10.  The agreed criminal record shows that Mr Choi has 41 criminal convictions accumulated over 31 court appearances spanning over 22 years.  Among them, there were 25 instances of theft (including shoplifting) and one instance of robbery.  The last time Mr Choi was sentenced was in February 2017 when he was ordered to serve a total sentence of 5 months for two offences of shoplifting.

Antecedents

11.  The agreed antecedents statement shows that Mr Choi is 40 years old and was so at the time of the offence; he received education to F3 level; that he claimed to be a drug addict.

12.  Defence suggested that despite the different information on the antecedents statement, Mr Choi was actually working as a casual decoration worker earning $600 a day before arrest, and was living with 4 other members of his family in Tseung Kwan O.

Mitigation

13.  Mr Jesse Kan of solicitor of Kenneth CC Man & Co mitigated on behalf of Mr Choi.

14.  The mitigation was by way of a set of written submissions supplemented by oral remarks.

15.  The following is a summary of the mitigation submissions.

16.  Mr Choi’s parents are now living in the US.

17.  Mr Choi had the habit of taking the drug ICE but has since got rid of the habit during remand for this case.

18.  The subject premises were let out for short leases and were akin to a unit of hostel which should be treated for sentencing purposes as domestic premises: HKSAR v Ng Wai Hing, CACC 621/2002; the Court of Appeal had laid down sentencing guideline for burglary of domestic premises at 3 years’ imprisonment.

19.  Mr Kan highlighted the following features in this case:-

(a) There was no confrontation with the victims;

(b) Door was not prized open and there was no damage to the premises;

(c) Mr Choi has no previous burglary records: he is not a professional burglar;

(d) There was no premeditation: no tools were found; and

(e) Mr Choi committed the offence out of momentary greed: he should be regarded as an opportunistic burglar.

20.  On the point of opportunistic burglar, Mr Kan further submitted that on 28 October 2017, ie the day of the burglary, Mr Choi was playing mahjong with friends on the 13/F of the same building; he felt tired and wanted to rent a room for one night for rest.  It was submitted in that building, many units were converted into hostels and Mr Choi was looking for a vacant room; that he came to the premises and found the door unlocked so he entered to check if the room was available. It was submitted that Mr Choi found no one in the premises and took the stolen property out of momentary greed.

21.  Mr Kan asked the court to accept that the burglary was unpremeditated and opportunistic.

22.  Mr Kan submitted the case of HKSAR v Cheung To Ming, CACC 406/2005 (also reported in [2006] 2 HKLRD 259), a case of opportunistic burglary of non-domestic premises in which the Court of Appeal substituted a starting point of 18 months.  Mr Kan accepted however that the facts of that case and those of our present one are quite different and the value of stolen property there was less.

23.  Next, Mr Kan submitted that Mr Choi was genuinely remorseful because he admitted the offence to the police even though the only piece of incriminating evidence against him at that time was he resembled the suspected burglar on the CCTV footages.

24.  Furthermore, it was submitted that Mr Choi voluntarily took the police to the Ma Bo Villa unit which he had rented for a few hours only and where he disposed of some of the stolen property including some travelling documents of PW1 and PW2.

25.  Lastly, it was submitted that Mr Choi committed the past offences of theft and the present offence of burglary because he needed to finance his habit of taking the drug ICE.

26.  Mr Kan asks the court to consider adopting a starting point of 33 months and reminds the court that Mr Choi is entitled to the full 1/3 discount.

27.  Upon enquiry by the court, Mr Kan submitted that Mr Choi did not expect the premises to be occupied by users despite the hours of the day because all along Mr Choi was looking for a hostel and when he found the door unlocked, he thought it was available for occupancy.

Sentence

28.  I have considered the mitigation submissions made by Mr Kan.

29.  I have viewed the photographs submitted by the prosecution.

30.  I agree with Mr Kan that this is an opportunistic burglary (with no damage done).  Consequently, I will lower the starting point appropriately.

31.  Apart from the early plea of guilty, I have not been able to find other mitigating factors worthy of earning Mr Choi any further discounts.

32.  The subject premises are in the nature of a hotel room.  It was held in HKSAR v Ng Wai Hing [2003] 2 HKLRD 338 that burglary of a hotel room should attract at least the same sentence as that of domestic premises.

33.  The conventional starting point for burglary of domestic premises committed by a first offender of full age in the absence of aggravating or mitigating factors is 3 years’ imprisonment (see Attorney General v Lui Kam Chi [1993] 1 HKC 215).

34.  I accept the submission that when Mr Choi entered the premises, he did not expect them to be occupied by users.

35.  However, there is an aggravating factor in this case in that despite the fact that Mr Choi has no burglary conviction record in the past, he has a long string of dishonesty-related conviction record.  He was released from prison not long before the present offence.  Clearly, he has not learnt any lesson from his previous times in prison.  On the principle stated in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, I shall enhance the starting point accordingly.

36.  Taking the fact of an opportunistic burglary and the said aggravating factor into account, I will adjust the starting point to be one of 2 years and 9 months’ ie 33 months’ imprisonment.

37.  Mr Choi is entitled to a 1/3 discount for his early plea of guilty.

(Mr Choi, please stand)

38.  I sentence Mr Choi to a term of 22 months’ imprisonment.