HKSAR v. LEE CHI KWAI AND ANOTHER

DCCC 796/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 796 OF 2014

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REASONS FOR SENTENCE

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1.  D1 and D2 (male) (both aged 53) appeared before me this afternoon and both pleaded guilty to a single charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.  The particulars of offence aver that D1 and D2 on 16 May 2014 in Hong Kong, having entered as trespassers part of a building known as Flat 806, 8th Floor, Block A, Wah Luen Industrial Centre, Nos 15-21 Wong Chuk Yeung Street, Fo Tan, Sha Tin, New Territories, attempted to steal therein. 

3.  According to the summary of facts which was agreed by both defendants, at about 5:45 am on 16 May 2014, police officers lay in ambush in the vicinity of an industrial building situated in Fo Tan, Sha Tin, New Territories. At the material time, the police saw D1 driving a light goods vehicle (LGV) to the industrial building.  Subsequently D1 and D2 separately went up to Flat 806, 8th Floor, Block A of the building which was a warehouse.  They were both wearing gloves.  According to the observation of the police, both defendants were seen prising open the rolling gate of the warehouse with crowbars and entered into the warehouse.  D1 was seen holding a carton box. 

4.  About 10 minutes later, both defendants came out from the warehouse.  At that juncture, the police disclosed their identities.  Both defendants fled away but were soon intercepted and arrested by the police.  Inside the carton box that D1 was carrying, the police found that there were breaking tools, gloves and adhesive tape. 

5.  The staff of the warehouse confirmed to the police that the carton boxes inside were moved.  There are more than 1,000 carton boxes inside and they contained LCD monitors, keyboards and tablet computers valued at a total of HK$10.408 million.  Altogether five boxes were cut open, however, there was nothing stolen from the warehouse.

6.  Under caution, D1 admitted burglary of the warehouse with D2 for money. D2 also admitted committing this burglary with D1 as he had no money. According to video-recorded interviews of D1 and D2, they gave more details as how they came to burgle the warehouse.  D1 stated that a week ago D2 and himself had checked around the warehouse.  They realised that the warehouse had valuable goods and its gate was easy to prise open.  D1 also rented a LGV from a friend “Ah Lung” who knew he was out to commit a burglary.  There was also breaking tools contained in the LVG when he took over the vehicle.  D1 would hand back the LGV with the stolen goods to Ah Lung and who would then arrange to sell the stolen property.  Before burglary, D1 had parked the LGV in the street and hid the box of the breaking tools at the 8th floor of the industrial building.  After they had entered the premises using the tools to prise open the gate of the warehouse, they cut open some carton boxes only to find that the goods were not valuable and so they decided to leave and were arrested on their way.  Similarly, D2 admitted checking around the warehouse with D1 before the offence and both entered the warehouse by prising open its gate.  Once entered, they cut open some carton boxes but found nothing valuable. 

Criminal records and background of the defendants

7.  D1 has a clear record.  He came to Hong Kong in 1984 from the Mainland.  He had finished primary education in the Mainland.  He had opened a restaurant but the landlord sought to increase the rent.  Unfortunately D1’s wife had also suffered cancer so in the end, he decided to close down the business and later worked in a recycling shop earning some $12,000 to $13,000 a month.  His wife finally passed away in 2013.  He also has a son and a daughter, both have graduated and now working.  Due to a debt incurred by the defendant in his business and also the medical expenses of his wife, the defendant had been declared bankrupt in 2013.

8.  D2 came to Hong Kong in 1979.  He only had a Primary 2 education in the Mainland.  He is also married and he has got a son and a daughter who are both secondary students.  D2 suffered from some liver disease and as a result he ceased to work.  He had in the past appeared in court twice in 1985 and 1986 involving two counts of criminal damage and common assault and also one count of attempted burglary.  He was only given a fine and also 6 months’ imprisonment which was suspended for 2 years.  In other words, he has not been sentenced to prison before.

Mitigation

9.  In mitigation, Mr Poon, the solicitor for both D1 and D2, emphasised the fact that both defendants had pleaded guilty to the offence and admitted their mistakes to the police upon their arrest and volunteered all the information to the police of how they came to commit the offences.  Mr Poon also relied on the fact that both defendants were inexperienced burglars in that although there were valuable properties stored in the warehouse, both defendants managed to only cut open five carton boxes during the 10 minutes they stayed inside the warehouse and failed to locate the valuable property and as a result they left the premises empty-handed and therefore no substantial financial loss was incurred to the property owner.

10.  In the case of D1, Mr Poon emphasised the fact that he has a clear record; that he has a hitherto good character and is a law-abiding citizen operating a restaurant for the last 30 years.  However, due to the sudden departure of the wife in 2013 coupled with the fact that the restaurant business had incurred a lot of debt and expenses, D1 was unable to repay it and therefore he had to apply to be bankrupt in 2013.  He also submitted to the court the letters of mitigation written by D1 and also by his son and his daughter.  Basically these letters spoke of the fact that D1 is a man of good character, the children of course said that D1 was a responsible father and that he had just made a wrong choice in order to solve his financial problem and asked the court to be as lenient as possible.

11.  In D1’s case, Mr Poon relied on the case of Chow Chak Man, (unrep.) CACC 447/1998, and asked the court to consider perhaps obtaining a Community Service Order Report (CSO Report) to see whether he is a suitable candidate for a Community Service Order. 

12.  In the case of D2, Mr Poon did not ask for the obtaining of a CSO Report. However, Mr Poon still asked me to be as lenient as possible when I considered the terms of imprisonment sentence.  Mr Poon emphasised that his last conviction, albeit a similar conviction, is a record of 30 years ago and therefore the court should not consider this previous similar record when I come to sentence D2. 

Sentencing considerations

13.  As rightly pointed out by Mr Poon in mitigation, the proper starting point in a case of burglary of non-domestic premises is 2 years and 6 months’ imprisonment (see AG v Lui Kam Chi [1993] 1 HKC 215).  However, the above starting point is a conventional starting point for a burglary of non-domestic premises which relates only to burglary with no aggravating or mitigating features.  In some other cases a higher starting point is justified. 

14.  The Court of Appeal had in the past concluded that as far as the sentence is concerned, much will depend on the aggravating circumstance of each individual case.  As to what will constitute aggravating features, in HKSAR v Cheng Wai Kai [2008] HKCU 932, Yeung JA (as he then was) said that:-

“15. The starting point can be adjusted upwards if there are aggravating circumstances such as; (1) the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous conviction of similar nature, and (6) the offender commits multiple offences”

15.  It is also apparent, as the Court of Appeal had noted in HKSAR v Fan Kit Hung [2009] 6 HKC 314, that there is an increasing appreciation of the need for deterrent sentences for offenders who are professional or serial burglars. 

16.  In the present case, it can be seen from the summary of facts that undoubtedly there were a number of aggravating features.  While the acts of both defendants may be somewhat inexperienced, the burglary was premeditated and well-planned.  An LGV containing breaking tools was obtained by D1.  The ally of D1, Ah Lung, was also ready and willing to act as a middleman to sell any stolen property that could be obtained during the burglary so the act could not be said to be merely opportunistic. 

17.  Both defendants had admitted to the police that they had been up to the very floor before where the warehouse was situated and they had decided that the roller gate would be easy to prise open.  A box containing the gloves and their crowbars, etc, were well placed in the 8th floor beforehand.  To me, the two defendants had acted in the course of this burglary as professional burglars, albeit unsuccessful ones.  Nor did the defendants act alone.  In this case, they have acted together.  On this occasion, a crowbar was employed, there were also adhesive tape prepared.  All these being an indication of a planned enterprise.  The warehouse, as can be seen from the summary of facts, contained valuable electronic goods which was valued well over HK$10 million.  The only trouble for the defendant was that they failed to locate the valuable goods properly.  It is also obvious to me that both defendants had targeted the valuable properties in the warehouse. 

18.  After taking into account all these aggravating features, I decided that an extra 6 months had to be added to the 2 years and 6 months’ imprisonment. For the avoidance of doubt, I must say that when I decided to increase by 6 months, I have already ignored the fact that D2 had a similar previous conviction which is over 30 years ago.  If that is not an outdated conviction, I would have increased the sentence in the case of D2 by at least 3 more months.

19.  As to the request by Mr Poon that the court to consider in D1’s case to obtain a Community Service Order Report, while D1 may fit into the six factors as specified in the case of Chow Chak Man, I am of the view that the sentence of a Community Service Order did not fit into the seriousness of the offence so I decided that both defendants have to serve an immediate custodial sentence.

20.  Both defendants had said to the police that they had committed the offence because they are in need of money.  The court, however, can never accept a defendant to commit crime in order to solve his economic problem. While I have much sympathy, in particular in D1’s case after hearing what had happened to him, however, once again because the offence is so serious, family circumstances virtually play no part in mitigation.

21.  The only effective mitigation in the case for both defendants is their plea of guilty to which they would be entitled to the one-third customary discount. 

22.  For this offence, each of the defendant will therefore be sentenced to an immediate custodial sentence of 24 months’ imprisonment.