HKSAR v. LEE HO KONG AND ANOTHER

DCCC1263/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1263 OF 2010

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Reasons for Sentence

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1.  There are two defendants in this case, D1, Lee Ho-kong, and D2, Cheung Kwok-wa. Both defendants pleaded guilty to one count of burglary.

2.  Both D1 and D2 admitted that on the 26th day of September 2010 they entered as trespassers part of a building known as the rear staircase between the 7th Floor and 11th Floor, Western Court, No.454F Queen’s Road West and they stole therein two rolls of brass strips.

3.  At about 4.30 pm on the day in question two police officers on duty at Hill Road saw D1 and D2 inside a hardware store purchasing a number of equipments, including a pair of bold cutter, a pair of pliers and 5 screwdrivers.  The police officers found the defendants’ behaviour suspicious and kept them under observation.

4.  About 5 minutes later, the police officers saw D1 and D2 entered Western Court, 454F Queen’s Road West via its unsecured rear entrance.  The building in question was a residential building but it was largely vacated pending redevelopment. 

5.  A report was made by the police officers as to what they saw and they asked for further police assistance.  More police officers arrived and they searched the building.  At about 6.05 pm on the same day, the police officers found D1 and D2 inside Flat A on the 7th Floor of the building.  Upon seeing the police officers, D1 immediately threw the bold cutter, the pliers and screwdrivers out of the window. 

6.  Both D1 and D2 were arrested and they were found in possession of 2 rolls of brass strips.

7.  Under caution at scene, D1 admitted to entering the building with D2 and stole some brass strips from the building for resale. D2 made a similar admission at scene under caution.

8.  In the subsequent video-recorded cautioned interviews, both D1 and D2 stated that they walked past the building and started forming the idea to steal things from within as it appeared to be an easy target.  The defendants thus went to buy burgling equipments from the hardware shop at Hill Road.  They then went back to the building and started removing brass strips from the wall of the staircase.  As they heard sound of other people coming into the building, they went into Flat A on the 7th Floor and hid inside the flat until they were found by the police officers.  D1 further admitted that he threw some of the burgling equipments out of the window as he was in fear.

9.  Two kilogrammes of brass strips were stolen and they were valued at approximately $100.

10.  D1 had 19 previous convictions recorded against him, 10 of them were dishonesty-related and he had 2 previous convictions for burglary.

11.  As for D2, he had 11 previous convictions, 7 of them were dishonesty-related and he had one burglary conviction recorded against him in 1982. 

12.  The antecedent statement of D1 shows that he is now 31 years old.  He received primary education in Hong Kong.  He was unemployed at the time of his arrest.  He has a 6 years old daughter.  He is now living with his parents in a flat in Tuen Mun. 

13.  As for the 2nd defendant, he is now 44 years old.  He received primary education in Hong Kong.  He was unemployed at the time of his arrest.  He is still single and he was living with his mother in a flat in Wah Fu Estate. 

14.  Mr Chau who appears for D1 submits in mitigation that the culpability of the burglary in question should be akin to a non-domestic premises burglary.  Flat A, i.e. the premises in which the defendants were found, was vacated at the material time and the burglary took place at daytime and the burglary was a one-off incident that took place on the day in question.

15.  Mr Ma for D2 submits that the burglary in question was opportunistic in nature.  Mr Ma submits the case of HKSAR v Cheung To Ming 259 HKLRD, Volume 2, 2006, and the case of HKSAR v Sim Ka Wing CACC450/2000.  Mr Ma submits that in the case of Sim Ka Wing, the Court of Appeal in page 5 of the judgment stated that the conventional starting point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal.   And he submits that the burglary in question was opportunistic in nature. 

16.  In sentencing the defendants, I have borne in mind the nature of the offence, the facts as admitted by the defendants and the culpability as revealed by the facts.

17.  The burglary in question is a burglary of domestic premises.  However, the building in question was largely vacated pending redevelopment and the defendants did not break into any of the premises which were still occupied.   Although they were found inside Flat A of the building, the facts revealed that they withdrew into Flat A after they saw the police officers.  It was not the intention of the defendants to burgle inside Flat A.

18.  The facts suggested the defendants only aimed at the brass strips in the staircase.  There was some planning by the defendants before they burgled the premises.  They were seen by the police officers that they went into a hardware store to purchase burgling equipments.  I do not take it as an aggravating feature as recognized by the case Sim Ka Wing:

“Such burglaries will involve a measure of planning and thus a degree of premeditation and planning is already built into the conventional starting point.”

19.  I take it as an aggravating feature, however, that D1 and D2 acted together in the course of the burglary.  The facts that they acted together in the course of the burglary make the case more serious than the case of a burglary committed by a lone burglar. 

20.  All factors taken into consideration, in my judgment, the culpability of the present case is lower than a typical burglary of non-domestic premises which calls for a starting point of 30 months’ imprisonment.  In my judgment, a starting point of 2 years’ imprisonment should meet the end of justice. 

21.  D1 and D2 pleaded guilty to the offence on the first day of the trial.  They are entitled to one-third reduction.  The defendants are not men of clear record.  Apart from their guilty pleas, there is no other mitigating factor which can enable me to further reduce the sentence. 

22.  For the reasons given, I sentence D1 and D2 to 16 months’ imprisonment.