HKSAR v. LAM TO SHI

DCCC 214/2017
DCCC 450/2017
(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 214 AND 450 OF 2017 (CONS)

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two offences of burglary and one offence of failing to surrender to custody without reasonable cause.

2.  The first offence occurred some time on 22 December 2016 at a restaurant in Mong Kok which the defendant had worked at for one day in November.  At the time, some $9,800‑odd in cash had been placed inside a drawer which was locked inside the restaurant.  The roller gate to the restaurant had been half opened to allow deliveries.

3.  In the late morning, the defendant was seen coming in through the roller gate to enter the restaurant.  It was later found that the drawer to the cashier counter had been prised open and the cash that had been in it was missing.

4.  The defendant was in fact captured on CCTV entering the restaurant and prising the drawer of the cashier counter.  He later admitted he had gone round to the restaurant, seen the roller gate was half-open, decided to go and steal, and used a trowel to prise open the cashier counter, and taken away the cash.

5.  The defendant was arrested on 8 January 2017 for that offence, and later appeared in court on 10 January.  He was granted bail on that day.  The case was adjourned to 10 February 2017. The defendant failed to appear, and a warrant for arrest was issued.  The warrant for arrest was eventually executed on 27 February 2017, when the defendant was rearrested.  He had said at the time he was unable to take leave as he was looking after his younger son, who was sick and apparently in hospital.

6.  Prior to his arrest on 27 February, he committed a further burglary on 26 February, the day before.  This is again at a restaurant in Mong Kok.  This restaurant had been left secured on the early morning of 26 February 2017.  The next morning it was found that the restaurant had been opened.  Glass panels at the fire doors and at the rear had been smashed and broken.  The cashier counter had been ransacked and cash of $802 had been stolen.

7.  The defendant was later interviewed about that burglary.  He said he had committed that burglary on his own.  He said he had entered through a rear door that was unlocked.  He couldn’t see anything clearly, and left without stealing anything, although the facts would appear to show that some cash was stolen and the restaurant was entered by breaking into it.

8.  Those are the facts of the case.

9.  The defendant’s antecedents show that he is a man of clear record.  He has been employed as a part-time cook, and completed secondary education in the People’s Republic of China.  He is married and has two sons, and the mitigation has shown that one of his sons has apparently severe respiratory problems and was committed to hospital at the time when the defendant failed to appear in court on 10 February.  I am told there is no indication that the defendant informed the court of that.

10.  Prior to his involvement in these offences, as I say, the defendant is of clear record.  He was a family man and cared for his wife and children.  He worked in kitchens in restaurants and attributes, through mitigation, his commission of these offences to the fact that he had to care for his son and was unable to conduct full-time work, and did this to raise money quickly.  His wife is currently working to maintain the care of the children.

11.  The defendant is remorseful and wishes to return to care for his children as soon as possible.

12.  As far as the sentence is concerned, these are non‑residential burglaries.  There is a clear guideline for such offences, and the starting point for sentence in respect of the 1st and 3rd charges for a person of clear record convicted after trial is normally 30 months’ imprisonment.  As far as the 2nd offence is concerned, there is no guideline sentence for this offence. The court will normally look at the issues such as the length of time the defendant was apparently on the run and any other inconvenience caused by his failure to attend court at the correct time.

13.  The burglaries here:  the first burglary has elements of a walk‑in burglary.  However, I do not think this could be classified quite in that category, because the defendant knew the premises, knew there would be money stored there in the cashier counter, and used an implement to prise open the cashier counter to get at the money; and the money kept in the cashier counter was a fairly sizeable amount.

14.  So in respect of that burglary, I see no reason to depart from the normal starting point for sentence.  The defendant will be entitled, of course, to a one-third discount from that, which, on the 1st charge, would lead to a sentence of 20 months’ imprisonment.

15.  The 2nd charge is the failure of the defendant to attend court on 10 February.  The defendant was only at large for a short period, because he was rearrested on the 27th.  I have decided to take a starting point of 3 months’ imprisonment and reduce that to 2 months’ imprisonment for the defendant’s plea of guilty.

16.  The 3rd charge was a burglary that was committed while the defendant was actually on the run.  He was also on bail as well, and those are aggravating factors in the commission of that offence.

17.  Although the defendant’s record of interview does not go as far as to admit breaking into the premises and stealing the money, it was clear that they were part and parcel of the offence.

18.  Again, I see no reason to depart from the normal starting point for sentence, although that should be aggravated or increased by the fact that the offence was committed whilst on bail.

19.  That will lead to a starting point of 33 months’ imprisonment.  After a deduction for a plea of guilty, that leads to a sentence of 22 months’ imprisonment.

20.  Now I have to consider what the overall sentence should be.  These offences could be served consecutively.  That would lead to a lengthy sentence.  The offences are serious, so a substantial term of imprisonment is inevitable.  However, one cannot ignore the fact the defendant was a man of clear record before this occurred.  Also, he was a family man.  He has been put under considerable pressure by the illness of his son.  I find it extraordinary the defendant should start a criminal career in this way.  He is clearly remorseful and wants to put his life right.

21.  What I shall do is as far as the 2nd and 3rd offences are concerned, I am going to order they be served concurrently to each other, and that 10 months of those sentences be served consecutively to the 1st charge. 

22.  This leads to an overall total sentence of 30 months’ imprisonment for these three offences.