HKSAR v. TSE LOK LAI, TONY AND ANOTHER

DCCC 818/2020

[2021] HKDC 530

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 818 OF 2020

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  D1 pleads guilty to one charge of burglary of a shop, contrary to section 11 of the Theft Ordinance[1] (charge 1) and to one joint charge of burglary of a hair salon together with D2 (charge 2) [2]. D2 also pleads guilty to charge 2.

2.  The burglaries were both committed in May 2020.  The defendants were arrested on 23 June 2020.  Full particulars of the offences are set out in the summary of facts admitted by the defendants today. 

Charge 1

3.  At around 2100 hours on 10 May 2020 the proprietor of Prestige Ore Company Limited situated on the 2/F, No. 53 Shangtung Street in Mong Kok, left work having first secured all the doors of the shop. 

4.  The next day, 11 May, when the staff returned to the shop they found the wooden door had been prized open and the shop ransacked.  Upon checking the proprietor found two cameras, one laptop, one iPad, one iPhone and $250,000 cash missing. The total value of the stolen property was estimated at $300,000.

5.  In a video recorded interview D1 admitted, inter alia, he was asked to burgle the shop by “So Ha” by acting as a lookout downstairs for which he was rewarded $25,000.

Charge 2

6.  At around 2100 hours on 16 May 2020 the staff of Vigor Hair situated on the 2/F, No. 19 Lai Chi Kok Road in Mong Kok left work having first secured the glass door of the salon with two metal locks. 

7.  The next day, 17 May, when the staff returned to the salon they found both metal locks missing and the salon ransacked.  Upon checking three laptops, two hair trimmers, ten hair treatment products, one cheque book and $800 cash were found missing.  The total value of the stolen property was estimated at $21,900.

8.  CCTV captured D2 using a tool to prize open the door lock of the salon after which D1 and D2 entered and ransacked the salon.

9.  In a video recorded interview D1 admitted, inter alia, burgling the salon together with D2; all the stolen property was sold for $1,200 to a hawker in Ap Liu Street and that he received $400. 

10.  In a video recorded interview D2 admitted, inter alia, burgling the salon together with D1; using a pair of pliers to cut open the metal lock of the door and selling all the stolen property for about $1,200 to a hawker in Ap Liu Street and that he split half the money with D1. 

Mitigation

D1

11.  I have carefully considered the oral and written submissions of Mr Lam, including that D1, who is 51, married with three children and the main contributor to the family, committed the two burglaries because of financial difficulties having become unemployed around the time of the Chinese New Year[3].

12.  I take into account that D1 has no previous convictions for burglary.  D1 does however have a long criminal record including convictions for theft, robbery, blackmail and having custody or control of counterfeit notes and coins.  

D2

13.  I have carefully considered the oral and written submissions of Mr Liu, including that D2, who is 51, single and lives with his mother, committed the burglary with D1 because he needed money for rent[4]. Mr Liu has also read the content of the defendant’s mitigation letter submitted to court today.

14.  I take into account that D2 has no previous convictions for burglary.  D2 also has a long criminal record including convictions for theft and handling stolen goods.

Starting point

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

Charge 1

16.  The fact that D1 only acted as a lookout and did not enter the shop is not a mitigating factor.  The defendant received $25,000 for his part in the burglary. I am satisfied the proper starting point after trial is 2 years and 6 months’ imprisonment. 

17.  The commission of burglary by two or more persons is an aggravating factor[5].  The taking of property estimated at around $300,000 is also an aggravating factor. 

18.  I enhance the starting point by 6 months to 3 years’ imprisonment.  Giving D1 full credit for his plea of guilty reduces the sentence to 2 years’ imprisonment.

Charge 2

19.  I am satisfied the proper starting point after trial is 2 years and 6 months’ imprisonment. 

20.  The commission of burglary by two persons is again an aggravating factor.  I enhance the starting point by 3 months to 2 years and 9 months’ imprisonment.  Giving the defendants full credit for their pleas of guilty reduces the sentence to 1 year and 10 months’ imprisonment.

21.  Although both defendants have long criminal records, taking into account D1’s last conviction for an offence of dishonesty was in 2013 and D2’s last conviction for an offence of dishonesty was in 2016, I do not enhance the sentences by reason of previous offending.

Totality

22.  Where the offences are committed in different premises against different victims on different dates consecutive sentences should be imposed.   

23.  Taking into account all the circumstances of the two burglaries, I am satisfied a total sentence of 3 years’ imprisonment properly reflects D1’s criminality on the two charges and takes into account D1’s personal circumstances and the seriousness of the offences[6]. 

Sentence

24.  The defendants are convicted and sentenced as follows:

D1

Charge 1 – 2 years’ imprisonment; and

Charge 2 – 1 year and 10 months’ imprisonment with 12 months consecutive and 10 months concurrent to charge 1;

The total sentence to be served by D1 is 3 years’ imprisonment.

D2

Charge 2 – 1 year and 10 months’ imprisonment.