HKSAR v. LAI KONG LAM

DCCC 558/2021

[2022] HKDC 596

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 558 OF 2021

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REASONS FOR SENTENCE

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Charges

1.  The Defendant pleads guilty to 9 charges of burglary on non-domestic premises (Charges 1 – 7, 10 and 11). 

Facts

Charge 1 – Unify Commercial Industrial Building 21 February 2021

2.  At the material time, PW18 was the manager of UP-TODAY INDUSTRIAL COMPANY LIMITED (“VTC-A”)  located at Room A, 7^th Floor, Unify Commercial Industrial Building, No. 31 Tai Yip Street, Kwun Tong (“Loc-A”). On 20 February 2021, PW18 left Loc-A after he checked that there was cash of around HK$5,000 in the green cash box located in the accountant’s office of Loc-A.

3.  At the material time, there were scaffoldings around the external wall of Unify Commercial Industrial Building.

4.  At 1700 hours on 20 February 2021, PW1 left Loc-A after ensuring that all windows were closed and the main entrance door was locked.

5.  At 1912 hours on 21 February 2021, PW1 was informed that the security alarm of Loc-A had been activated. PW1 returned to Loc-A and notified PW18, who also returned to Loc-A. Upon checking, the locked window of the accountant’s office in Loc-A had been opened and there were signs of ransacking. Cash of around HK$5,000, which was originally placed in the green cash box in the said office, went missing.

6.  The irresistible inference is that there was forcible entry to Loc-A by the Defendant.

Charge 2 – Unify Commercial Industrial Building 21 February 2021

7.  At the material time, PW2 was the manager of C.E.C CATERING EQUIPMENT COMPANY LIMITED (“VTC-B”)  located at 6^th Floor, Unify Commercial Industrial Building, No. 31 Tai Yip Street, Kwun Tong (“Loc-B”).

8.  At the material time, there were scaffoldings around the external wall of Unify Commercial Industrial Building.

9.  At around 1430 hours on 20 February 2021, PW2 left Loc-B after ensuring that all windows and doors were closed and locked.

10.  At around 0830 hours on 22 February 2021, colleagues of PW2 arrived at Loc-B and discovered that there were signs of ransacking and a locked window was half-opened. Upon checking, 2 furnishings belonging to VTC-B (value: HK$20,000), HK$500 cash belonging to a staff member PW3, and HK$200 cash belonging to another staff member PW4 were missing.

11.  The irresistible inference is that there was forcible entry to Loc-B by the Defendant.

Charges 3 and 4 – Nathan Tower 26 February 2021

12.  At the material time:

a)  PW5 was the person-in-charge of XINTECH ELECTRONIC CO., LIMITED located at Room A, 14^th Floor, Nathan Tower, Nos. 518-520 Nathan Road, Yau Ma Tei (“Loc-C”);

b)  PW6 was the salesperson of “Health i Shop” located at Room B, 14^th Floor, Nathan Tower, Nos. 518-520 Nathan Road, Yau Ma Tei (“Loc-D”);

c)  There were scaffoldings around the external wall of Nathan Tower;

d)  Loc-C and Loc-D are adjacent to each other. Due to business cooperation, PW6 had the keys of Loc-C.

13.  At 1930 hours on 25 February 2021, PW6 left Loc-D after ensuring that all windows and doors were closed and locked. Similarly, at around 2015 hours on 25 February 2021, PW5 left Loc-C after ensuring that all windows were closed and the main entrance door was locked.

14.  At 1000 hours on the following day, PW6 returned to Loc-D and discovered signs of ransacking. A locked window, a drawer and the cashier machine in Loc-D had been prized open. PW6 also went to check Loc-C and discovered signs of ransacking. She immediately contacted PW5.

15.  At around 1110 hours on the same day, PW5 returned to Loc-C and noted that a locked window therein was opened. There were signs of the place being ransacked.

16.  Upon checking:

a)  PW5 discovered that cash of around HK$20,000 and RMB2,000, originally in the drawers in Loc-C, went missing.

b)  PW6 discovered that cash of HK$15,000, originally in a drawer and the cashier machine in Loc-D, went missing.

17.  There was forcible entry to Loc-C and Loc-D by the Defendant.

Charge 5 – Nathan Tower 26 February 2021

18.  At the material time, PW7 and PW8 were respectively a secretary and an accountant of B.F. International Property Investment Company Limited located at Room A, 17^th Floor, Nathan Tower, Nos. 518-520 Nathan Road, Yau Ma Tei (“Loc-E”).

19.  At the material time, there were scaffoldings around the external wall of Nathan Tower.

20.  At 1700 hours on 25 February 2021, PW7 left Loc-E after ensuring that all windows and doors were closed and locked.

21.  At 0850 hours on 26 February 2021, PW8 attended Loc-E. She discovered that cash of HK$8,100 originally placed in a drawer in Loc-E went missing. She also discovered that a locked window was prized open.

22.  There was forcible entry to Loc-E by the Defendant.

Charge 6 – Kalok Building 3 March 2021

23.  At the material time, PW9 was a manager of “HUI SIK WING & CO.” (“VTC-F”)  located at Room 601, Kalok Building, Nos. 720-722 Nathan Road, Mong Kok (“Loc-F”).

24.  At the material time, the building was under renovation and there were scaffoldings around the external wall of Kalok Building.

25.  At around 1900 hours on 2 March 2021, PW9 left Loc-F after checking Loc-F was in order.

26.  At around 1100 hours on 3 March 2021, PW9 arrived at Loc-F and was informed by her colleague SUEN Su-chun (PW19)  that there were signs of ransacking. Upon checking, PW5 discovered that some cash and jewellery of total value of HK$90,000 originally locked away went missing.

27.  There was forcible entry to Loc-F by the Defendant.

Charge 7 – Kalok Building 3 March 2021

28.  At the material time, LAM Dick-man (PW10)  was a Chinese medicine practitioner of “LAM Dick Man Chinese Medicine Clinic” located at Room 501, Kalok Building, Nos. 720-722 Nathan Road, Mong Kok (“Loc-G”).

29.  At the material time, the building was under renovation and there were scaffoldings around the external wall of Kalok Building.

30.  At 2000 hours on 2 March 2021, PW10 left Loc-G after locking its main entrance door.

31.  At 0930 hours on 3 March 2021, PW10 returned to Loc-G and the door of the main door remained locked. He discovered signs of ransacking. Upon inspection later the same day, PW10 confirmed that cash of around HK$5,500 went missing.

32.  There was forcible entry to Loc-G by the Defendant.

Charge 10 – Nathan Tower 6 March 2021

33.  At the material time, PW13 was the accountant of TATKIT MANAGEMENT COMPANY LIMITED (“VTC-J”)  located at Room C2, 12^th Floor, Nathan Tower, Nos. 518-520 Nathan Road, Yau Ma Tei (“Loc-J”).

34.  At the material time, there were scaffoldings around the external wall of Nathan Tower.

35.  At 1800 hours on 5 March 2021, PW13 left Loc-J after closing and locking all its windows and doors. She also locked the metal drawer in the office after checking the cash of HK$3,000 therein.

36.  At 0830 hours on 8 March 2021, PW13 returned to Loc-J and noticed that there were signs of ransacking and that a locked window was opened ajar. Upon checking, the said cash went missing and the said drawer had been prized open.

37.  There was forcible entry to Loc-J by the Defendant.

Charge 11 – Nathan Tower 6 March 2021

38.  At the material time, PW14 was a Chinese medicine practitioner of EVERDANT CHINESE MEDICINE CLINIC LIMITED (“VTC-K”)  located at Room C1, 12^th Floor, Nathan Tower, Nos. 518-520 Nathan Road, Yau Ma Tei (“Loc-K”).

39.  At the material time, there were scaffoldings around the external wall of Nathan Tower.

40.  At around 1910 hours on 5 March 2021, PW14 left Loc-K after ensuring that all its doors and windows were closed and locked.

41.  At around 1100 hours on the following day, PW14 returned to Loc-K. He noticed that the curtain therein was opened, there were traces of ransacking, and a locked window was opened ajar. Upon checking, cash of around HK$20,000, originally placed in a drawer and a cashbox in Loc-K, went missing.

42.  There was forcible entry to Loc-K by the Defendant.

Arrest of Defendant

43.  Upon investigation, the Defendant’s identity and place of abode surfaced.  On 9 March 2021, he was arrested at lift lobby, 11/F, Ming Kok House, Ming Tak Estate, 10 Pui Shing Lane, Tseung Kwan O (outside his place of abode)  for “Chain Burglary” for the instances set out in Charges 10 to 11 above. Under caution, he said that he burgled into the premises to steal some money for use. He also committed other instances of burglary.

44.  At the police station, he was further arrested for “Chain Burglary” for the instances set out in Charges 3 to 5 above. Under caution, he said that he burgled into the 3 premises alone because he had no money. He has already spent all the money.

CCTV Footage

45.  In relation to Charges 1-2:

a)  CCTV footage of a lift in the building of D’s home captured D at 1636 hours on 21 February 2021.

b)  CCTV footage of Unify Commercial Industrial Building captured D approaching the building and climbing onto its surrounding scaffold at 1734-1740 hours on the same day. Subsequently at 1910 hours, D was seen climbing down the scaffold and left the scene.

46.  In relation to Charges 3-5:

a)  CCTV footage of a lift in Nathan Apartments (a building near to Nathan Tower)  captured D taking the lift from G/F up to 13/F at 2322-2323 hours on 25 February 2021. CCTV camera also captured D taking the lift from 11/F down to G/F at 0113-0114 hours on the following day.

47.  In relation to Charges 6-7:

a)  CCTV footage of Kalok Building captured D approaching the building and climbing onto its surrounding scaffold at 0017 hours on 3 March 2021. Subsequently at 0300 hours on the same day, D was seen climbing down the scaffold and left the scene.

48.  In relation to Charges 10-11:

a)  CCTV footage of a lift in Nathan Apartments captured D taking the lift from G/F up to 13/F at 2341-2342 hours on 5 March 2021. The same CCTV camera also captured D taking the lift from 9/F down to G/F at 0440 hours on the following day.

b)  CCTV footage at Loc-K captured D at 0151-0158 hours on 6 March 2021 walking rom the consultation room to the waiting area and searching around Loc-K.

Video-recorded Interviews

49.  In relation to Charges 1-2, he said during a cautioned video-recorded interview that:

a)  he went to a building around Ngau Tau Kok and burgled into 2 premises in the afternoon on 21 February 2021.

b)  That afternoon, he climbed up the scaffold of a building, and went into and exited from the said 2 premises through their windows, and stole some cash therefrom.

c)  He confirmed that the man captured by the CCTV of Unify Commercial Industrial Building is himself.

d)  He spent all the monies he had stolen from the said 2 premises.

50.  In relation to Charges 3-5, he said during a cautioned video-recorded interview that:

a)  He went to Nathan Tower via the roof of the nearby Nathan Apartments and burgled into some premises on the night of 25-26 February 2021.

b)  That night, he went into and exited from 3 premises through their locked windows, and stole some HKD cash therefrom.

c)  He used a screwdriver to prize open the windows to gain entry.

d)  The man captured by the CCTV of Nathan Apartments is himself.

51.  In relation to Charges 6-7, D said during a cautioned video-recorded interview that:

a)  D admitted going to Kalok Building and burgled into 2 premises on the night of 2-3 March 2021.

b)  That night, he climbed up the scaffold surrounding the building. He could not recall how many floors he had climbed. He went into and exited from 2 premises through their locked windows, and stole a total of around HK$20,000 cash therefrom.

c)  He used a screwdriver to prize open the windows to gain entry.

d)  The man captured by the CCTV of Kalok Building is himself.

e)  He spent all the monies he had stolen.

52.  In relation to Charges 10-11, he said during a cautioned video-recorded interview that:

a)  He went to Nathan Tower via the roof of the nearby Nathan Apartments and burgled into some premises on the night of 5 March 2021.

b)  He used a screwdriver to prize open the windows to gain entry.

c)  That night, he went into and exited from a total of 4-5 premises through their windows, and stole around HK$10,000-20,000.

d)  The man captured by the CCTV of Nathan Apartments and Loc-L is himself.

e)  He spent all the monies he had stolen.

Offences

53.  At the material times, the Defendant, having forcibly entered Loc-A, Loc-B, Loc-C, Loc-D, Loc-E, Loc-F, Loc-G, Loc-J and Loc-K as a trespasser, stole therein.

Mitigation

54.  The Defendant is 51 years of age, of F. 3 education level.  He was divorced.  He has no children.  He lives alone.  As stated in his medical reports, he has been suffering from heart disease and diabetes.  His condition is not very serious so far.  He last worked as a foreman of a cleaning company.  He had 11 court cases resulting in many dishonesty records but the most recent one was back in 2013.  I do not consider these matters relevant to his sentence today. 

55.  However, for burglaries in particular, he had 3 records (sentenced in 2004, 2008 and 2019 respectively).  For the last burglary he was sentenced to 25 months on 25 March 2019.  His antecedents state that he was discharged on 8 April 2020.  That means he committed the present burglary 10 months after serving his burglary sentence.  His counsel Mr. Khosa acknowledges that his repeat offending shall be an aggravating feature in his present sentence.   

56.  The proper starting point for non-domestic premises shall be 2 years 6 months’ imprisonment for a first offender of full age in the absence of aggravating factors (R v Wong Man [1993] 1 HKC 80; HKSAR v Sim Ka-wing [2001] HKCA 169). 

57.  Mr. Khosa refers to the case of HKSAR v Monkhor Gantugs CACC 178/2016 where the defendant pleaded guilty to 6 burglaries of 6 office units, spanning 6 months.  The total property loss was about HK$37,000.  An overall starting point of 54 months was adopted (down to 36 months, after one-third discount for guilty plea)  and approved on appeal.   

Sentencing this Defendant

58.  The Defendant committed 2 burglaries in the first building on 21 February 2021 (Charges 1 and 2), 3 burglaries in the second building on 26 February 2021 (Charges 3 – 5), 2 burglaries in the third building on 3 March 2021 (Charges 6 and 7), and 2 burglaries in the fourth building on 6 March 2021 (Charges 10 and 11).  The total property loss here was about HK$167,300 and RMB2,000.   

59.  The proximity of the units and the timing indicates the efficiency of the Defendant.  There were separate losses to the occupants.  Each unit bore the effort and fruit of a separate forcible entry, warranting a separate sentence.  On the facts I take a starting point of 2 year 6 months for each of the 9 charges.  I increase it by 3 months for the repeat offending.  The actual starting point is 2 years 9 months (or 33 months).  One-third off for the plea of guilty, the sentence is 22 months each.

60.  I consider the totality principle and make the following adjustment:

1)  Charge 1: 22 months to be served;

2)  8 other charges: 3 months of each to be consecutive to Charge 1 and one another;

3)  The total sentence is 46 months.