HKSAR v. NGAI KAI LEONG

DCCC 1002/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1002 OF 2015

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Reasons for Sentence

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1.  The defendant faced 3 charges of burglary and 1 charge of using an identity card relating to another person. He pleaded guilty to charges 3 and 4 (two burglary charges), not guilty to charges 1 and 2. Upon his admission of the amended summary of facts and conviction on charges 3 and 4, the prosecution applied to have the remaining charges kept on file, not to be proceeded with without the leave of court. This Reasons for Sentence therefore deals only with charges 3 and 4.

Outline of facts

Charge 3

2.  The defendant entered Room E6 of Fortune Hotel on the 5^th floor of Wing Wah Building at no.40P Shantung Street in Mongkok on 21^st August 2015 as a trespasser and stole therein some gramophone records, two hard disks and two DVDs.

3.  Mr. Chung, a Hong Kong identity card holder who resides in Taiwan, was in Hong Kong for business and stayed at Room E6 of Fortune Hotel. At around 8:15pm on 21^st August, he went out after securing the room door. Upon returning at around 10pm the same night, he found that some gramophone records, two hard disks and two DVDs were missing. The case was reported to the Police.

Charge 4

4.  The defendant entered Room 1088 of Kwok Wah Hotel on the 10^th floor of Wing Wah Building at no.40P Shantung Street in Mongkok on 21^st August 2015 as a trespasser and stole therein two mobile phones and two chargers.

5.  Mr. Huang, a mainland tourist, was staying at Room 1088 on 21^st August. At around 2:30pm that day, Mr. Huang went out after securing the hotel room door. Upon his return at around 9:30pm the same day, he found that two mobile phones and two chargers were missing. The matter was reported to the Police.

6.  Upon Police investigation, it was revealed that the defendant together with two others rented Room 1088 of Kwok Wah Hotel at around 5:50pm on 18^th August 2015.

7.  Staff member of Kwok Wah Hotel noticed that the defendant and his companions had checked out of Room 1088 at around 1:30pm on 20^th August without returning the room key. The manager arranged to have the lock changed the same day.

8.  Closed circuit television footages captured the defendant registering at Kwok Wah Hotel.

9.  The Police officer responsible for viewing the CCTV footage spotted the defendant walking together  with a female and a male along Nathan Road near Playing Field Road at around 12:45am on 31^st August 2015. Other police officers joined in and the defendant was followed, until he was eventually intercepted at around 2:17pm the same day on Tai Po Road.

10.  Upon search, a Hong Kong identity card in the name of “Tang Wai Lun” was found on the defendant. This identity card was used to rent Room 1088 a few days before the said Mr. Huang rented the same room. The identity card did not belong to the defendant.

11.  A mobile phone which was later confirmed to belong to the said Mr. Huang was also found on the defendant.

12.  The defendant was arrested. At a subsequent video recorded interview, the defendant was shown the above mentioned CCTV footage and he recognized himself.

13.  The defendant claimed that he did burgle Room E6 of Fortune Hotel, but that he had only stolen 20 gramophone records, which he had later thrown away.

14.  The defendant admitted that he rented Room 1088 on 18^th August 2015. He claimed that he returned to Room 1088 to retrieve something that he had left behind. When there, he saw the mobile phones and took them out of greed. The defendant had later thrown away the key to Room 1088, which he had not returned upon checking out.

Previous convictions

15.  The defendant has 20 convictions from 13 court appearances. The latest conviction was for the possession of dangerous drugs in November 2013. There are several convictions similar to the present one, including theft, robbery and attempted theft. The most recent one being in 2006 when he was sentenced to 2 months’ imprisonment for theft.

Mitigation

16.  The defendant was born in Hong Kong and is now 42. He is educated up to F.3 level and was working as a part-time transportation worker at the time of arrest.

17.  The defendant lives with his stepfather, natural mother and the defendant’s 9 year old daughter. The defendant contributed $5,000 per month to the mother of his daughter.

Sentencing guidelines

18.  In the case of HKSAR v Ng Wai-hing [2003] 2 HKLRD 338, CACC 621/2002, the Court of Appeal considered the proper sentencing approach when dealing with burglary of a hotel room:

“28. Burglary is a serious offence and burglary of domestic premises is even more serious as there is always the possibility of confrontation with the occupant who will be subject to extreme fright when a total stranger invades his privacy. The gravamen in burglary of domestic premises is the fear felt by victims that a thief should have invaded their own house. That is why it may be regarded as an aggravating factor in burglary of premises which are expected to be occupied.

29. It may not be too helpful to decide if a hotel room should be categorized as domestic or non-domestic for sentencing purpose. A hotel is in a category of its own. But the aggravating factor involved in burglary of domestic premises is certainly present in the case of burglary of a hotel room.

30. Indeed a hotel is meant for visitors to whom the trauma of being burgled may well in some case be more profound and intense, particularly if passports, credit cards and spending money or the like are stolen. The image of Hong Kong in the international community will also be significantly affected by such crime.

31. We are of the view that burglary of a hotel room should at least attract the same sentence as that of domestic premises. The judge is right in adopting a starting point of 3 years for the burglary charge.”

19.  The guideline sentence for burglary of a domestic premises is that of a starting point of 3 years’ imprisonment, in the absence of aggravating or mitigating factors[1].

Sentence

20.  The maximum sentence on conviction upon indictment for burglary is that of 14 years’ imprisonment.

21.  The burglary of Room E6 of Fortune Hotel took place some time between 8:15pm and 10pm on 21^st August. The burglary of Room 1088 took place on the same day sometime between 2:30pm and 9:30pm. There was no confrontation between the defendant and the occupants of the rooms. The defendant did not cause any damage to the doors or the locks and the rooms were not ransacked. The property stolen are not particularly valuable.

22.  Although the defendant has previous convictions relating to dishonesty, the one nearest in time was some 10 years ago in 2006. I will not find that as an aggravating factor. I also find that there are no aggravating features concerning the two burglaries.

23.  I accept Mr. Cheng’s submissions in relation to the discount to be granted to the defendant based on the assistance he had given to the Police in a previous case, which had led to the apprehension and conviction of a drug trafficker in the High Court.

24.  Mr. Cheng very helpfully drew my attention to the Court of Final Appeal case of Z v HKSAR[2] to assist in my consideration of whether to grant the discount and if so how much.

25.  The defendant had given ‘pre-arrest assistance’. The Court held specifically at paragraph 18 of the judgment that ‘pre-arrest assistance’ may be recognized. The sentencing court should examine the circumstances relating to the assistance given before deciding whether and if so, the extent to which it should be taken into account. The reason for the offender’s cooperation in a pre-arrest case is important for the court to understand the circumstances relating to his assistance.

26.  In Z, the appellant did not obtain anything in return for his assistance. He did not receive any payment or other consideration. The assistance was given in April 2003 before the first offence was committed in June 2003. The Court of Final Appeal found that there was no reason to suppose that in giving assistance in April 2003, the appellant was seeking to build up credit in order to minimise the consequences of crimes he might thereafter commit.

27.  The Court of Final Appeal found that the usual 40% discount (inclusive of the one-third discount for a guilty plea) should have been given.

28.  In our present case, there is also no evidence to suggest that the defendant was seeking to build up his credit for future crimes when he rendered the assistance. The information from the defendant led to the arrest and eventual conviction of a drug trafficker in the High Court. The defendant did not give evidence in that trial. 

29.  I find that a discount should be granted for the defendant’s assistance to the police, and that the discount should be 40%, being inclusive of the one-third discount granted for his guilty pleas.

30.  In relation to each of charge 3 and 4, I adopt a starting point of 3 years’ imprisonment. The sentence is discounted by slightly more than 40% in recognition of the defendant’s guilty plea and the pre-arrest assistance given to the Police, resulting in 21 months’ imprisonment for each offence.

Totality

31.  The offences took place on the same day, close in proximity both in terms of location and time. They are two separate offences and the defendant could have committed one and not the other. He chose to commit both.

32.  Bearing in mind the principle of totality, I order that 9 months of the sentence in charge 4 be served consecutively to the sentence in charge 3. The total sentence for the two charges is therefore 30 months’ imprisonment.