HKSAR v. LEE SIU FUNG

DCCC 990/2020

[2021] HKDC 442

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 990 OF 2020

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REASONS FOR SENTENCE

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1.  Mr Lee pleaded guilty before me to one charge of burglary contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.  Particulars are that he, on 3 August 2020, in Hong Kong, having entered as a trespasser part of a building known as Shop No 101, 1^st Floor, Temple Mall South, No 103 Ching Tak Street, Wong Tai Sin, Kowloon, stole therein 3 portable chargers, cash of about $60 Hong Kong currency, one digital ruler with case, one notebook computer, one wallet, one bag and two charging cables.

Facts admitted by Mr Lee

2.  At all material times, the subject shop which was a restaurant was under renovation.

3.  On 3 August 2020, at about 3 pm, all renovation workers had left the shop.  About 2 hours later, one of the workers PW1 returned to find that the stolen property specified in the charge to the total value of about $6,360 was missing from the shop; that the backdoor had been prized open.

4.  Two days later, Mr Lee reported in person to the customer service counter of the mall in which the shop was located that he had found a bag of lost property which comprised all of the said stolen property except $40 cash.

5.  Feeling suspicious, the staff of the customer service counter reported to the police.

6.  CCTV captured the movement of Mr Lee walking near the shop on the day and at the time of the offence carrying with him some items including a notebook computer.

7.  On 7 August 2020, Mr Lee was arrested.  Under caution, he asked for a chance.  On the same day, under cautioned video-recorded interview, Mr Lee admitted entering the shop on offence date and stole a number of items including cash of $60 2/3 of which he had spent afterwards; he felt sorry and returned the rest of the property to customer service counter 2 days later.

Criminal record

8.  Mr Lee has one previous conviction of theft in 2007.

Antecedents

9.  Mr Lee was born in the Mainland and came to Hong Kong in 1996.  He is aged 29 (28 at the time of the offence), educated in Hong Kong to Form 3 level.  He has been a construction site worker before but unemployed since February 2020.  He is single and lived with his mother before arrest.

Mitigation

10.  Ms Vivian Yeung of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Lee.

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

12.  Mr Lee attended diploma education in Hong Kong while he was 22 years old.  Before the outbreak of covid-19, Mr Lee had worked as administrative assistant earning about $15,000 per month.  Since March 2020, he became unemployed.  Then, he worked as a part-time renovation worker for a daily rate of $700 and he worked 10-15 days a month.

13.  Mr Lee pleaded guilty at the first opportunity.  He did not go equipped for the burglary.  He found the backdoor unlocked and he did not prize open the backdoor.  He was just an opportunist and did not plan the burglary.  The statement of PW1 says that he last found the backdoor locked on 27 July 2020.

14.  Mr Lee committed the offence due to his financial strain and returned the stolen property 2 days later except $40 cash.  He left his contact numbers and real name to the customer service.  He is remorseful and is willing to compensate the victim but the police refused to accept the offer on behalf of the victim.

15.  Ms Yeung submitted two mitigation letters written respectively by Mr Lee and his mother.  The contents are generally that Mr Lee would accept whatever sentence that is  handed down to him and that he was remorseful and it was the mother’s wish that a lenient sentence be imposed so that he could turn a new leaf at an earlier time.

16.  The normal starting point for a single burglary of non-domestic premises committed with no aggravating or mitigating features is 30 months’ imprisonment.

17.  Defence urged the court to give Mr Lee full credit for his plea and to further reduce his sentence for restitution.

18.  Mr Lee has now reimbursed PW1 of the outstanding cash of $40 via the police; hence there is full restitution.

Sentence

19.  The normal starting point for a burglary of non-domestic premises is 2½ years’ imprisonment.

20.  Mr Lee has now performed full restitution of the stolen property.

21.  Ms Memi Ng of fiat counsel informed me that the prizing mark on the door is not obvious.  As a consequence, there is merit in the submission that Mr Lee was just an opportunist and did not prize open the backdoor.

22.  For those two factors, I will be lenient to Mr Lee and will lower the starting point by 6 months.

23.  Mr Lee pleaded guilty in good time for which he shall be given the full 1/3 discount.  There are no other mitigating factors of sufficient weight to warrant any further discount.

(Mr Lee, please stand)

24.  Mr Lee shall go to prison for 16 months.