HKSAR v. CHAN KA KIT

DCCC 878/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 878 OF 2015

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to four counts of “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210 (charges 1, 2, 4 and 5), one count of “Burglary” contrary to section 11(1)(a) and (4) of the same Ordinance (charge 3) and one count of “Going equipped for stealing”, contrary to section 27(1) of the same Ordinance (charge 6).

Charge 1

2.  Mr Fok Chu Wai of EVI Services Limited set up a tent in the concourse of the Olympian City shopping mall with some laptops and tablet computers inside.  There was no lock for the tent but there were metal barriers surrounding the tent.  Mr Fok last left the tent at around 2330 hours on 13 June 2015.  At 0900 hours on 14 June 2015, Mr Fok, upon being told that someone had stolen things from the tent, returned and confirmed 3 laptop computers, 6 tablet computers and one rucksack were missing.  The total value of these items is $23,500.     

3.  Subsequently, the defendant admitted under caution that he knew the Olympian City shopping mall very well. He went to the shopping mall on 14 June 2015 and found the tent was open and nobody was there.  He therefore took a rucksack from the tent and put all the stolen properties into the rucksack and left.  He had sold all the computers for $3,000 and spent all the money.  He later threw away the rucksack.

Charge 2

4.  Cannan Kindergarten is situated at No. 8 Hoi Ting Road, Tai Kok Tsui.  At about 1915 hours on 16 June 2015, the vice principal was the last person to leave the school with all the doors and windows secured.  At about 1000 hours on 21 June 2015, a teacher Miss Lo returned to the school and found 3 laptop computers, 2 digital cameras and 1 external hard disk missing.  The total value of these items is $19,550. 

5.  The defendant admitted under caution that the school was only 10 minutes’ walk from his residence.  At the material time, he walked past the school and found an open window.  He climbed into the school and stole the aforesaid mentioned items.  He sold all those items for $1,200 and had spent all the money. 

Charge 3

6.  Mr Ngai Tin Kong was a security guard at the construction site at No. 8 Fuk Chak Street, Tai Kok Tsui.  At 0550 hours on 23 June 2015, he saw the defendant, who was topless,  standing at the staff entrance.  Feeling suspicious, he questioned the defendant.  When he asked the defendant for his identity card, the defendant said he had lost his identity card and fled.

7.  It was later discovered that the door lock of the site’s office was tampered and the door was opened. Mr Ngai had last checked that door at 0535 hours with no abnormality found. Nothing was stolen from the site office. 

8.  Subsequently, the defendant admitted under caution that he jumped into the construction site through the fence at the back door with intent to look for valuables.  He found the door lock of the site’s office a bit loose and he therefore pulled hard at the door and opened it.  He then heard some noise from the back and he therefore took off his t-shirt pretending to be a worker of the site.  He had not stolen anything from the office.

Charges 4 & 5

9.  Mr Tsang Chi Yin Ricky was the person-in-charge of “Star of Canton Restaurant” at Olympian City 2.  At around 0030 hours on 28 June 2015, he was the last person to leave the restaurant.  At around 0700 hours on 29 June 2015, when he returned for work, he found 3 laptop computers missing.  The total value of these items is about $6,800.

10.  The defendant subsequently admitted under caution to have stolen those items from the restaurant.

11.  At about 2330 hours on 21 July 2015, staff of the restaurant locked all the doors and left.  At about 1130 hours on 22 July 2015, Mr Tsang found 2 laptop computers missing.  The total value of these items is about $8,000.

12.  In a subsequent video-recorded interview, the defendant admitted that at about 0400 hours on 22 July 2015, he went into Olympian City shopping mall though the fire escape doors.  He walked to the restaurant and found the back door unlocked.  He took 2 laptop computers and left.  Later, he sold one of the computers for $1,200 and spent all the money.

Charge 6

13.  At 1515 hours on 23 July 2015, the defendant was arrested outside his residence when he was leaving home.  Upon search, some tools including a torch, two screwdrivers and a pair of pliers were found in the defendant’s shoulder bag.  Under caution, the defendant admitted he was going out to steal.

Mitigation

14.  The defendant is aged 24 and single.  His mother passed away a few years ago.  He became addicted to dangerous drug in 2012 and his family members left him due to his drug habit. He had lost contact of his family members for about 1 year.  At the time of the offences, he was unemployed.

15.  It was submitted the usual starting point for burglary of non-domestic premises was 2.5 years for a first offender without any mitigating or aggravating factors.  For the offence of going equipped for stealing, it was submitted that the usual sentence ranged from a few months to about 1 year’s imprisonment.

16.  It was further submitted that all the 5 burglaries were committed in midnight or early morning when the premises were empty.  The defendant had not used any tools or equipment.  No forcible entry was involved.  The defendant simply walked or climbed inside.  It was said that the defendant was an opportunistic burglar, not a professional burglar.

17.  It was also submitted that for the first charge, the shopping mall was open to the public, the tent was unlocked and unattended.  I was referred to the sentencing in DCCC 82/2014 in which it was remarked that a lower starting point of 18 months’ imprisonment should be imposed for this kind of offence.  I was also referred to several other cases[1] in which the overall starting point of multiple counts of burglary was considered.  It was submitted that the overall starting point for the burglaries of the present case should not exceed 6 years.  It was further pointed out that in DCCC 785/2014, an overall starting point of 5.5 years was adopted for 5 counts of burglary.       

18.  Finally, it was submitted that the defendant pleaded guilty to the charges and was remorseful. The court was asked to impose a lenient sentence on the defendant.

Sentence

19.  There is a well settled sentencing guideline for burglary of non-domestic premises.  According to the guideline, the starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2.5 years’ imprisonment.

20.  As to what will constitute aggravating features, it was held in HKSAR v Cheng Wai Kai, CACC 338 & 339/2007, at para 15 that:

“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 instruments 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 convictions of a similar nature, and (6) the offender commits multiple offences.”

In addition, substantial damage done to the victimized premises or the things in it is also regarded as an aggravating factor (see HKSAR v Fan Kit Hung [2009] 6 HKC 314 at para 10).

21.  I accept the defence submissions that there are no aggravating features in this case as the defendant acted alone, the burglaries were committed at times when the premises were empty, the total value of stolen properties ($57,850) was not substantial, no planning or heavy equipment was involved, no damage was done to the premises and the defendant was not a professional burglar.  However, I do note that none of the stolen properties had been recovered.

22.  The defendant has 11 previous conviction records, none relates to burglary whilst 3 of them relate to theft. The last conviction for theft is in 2008.  For the purpose of sentencing, I will not enhance the starting point solely because of the defendant’s previous conviction records.

23.  In HKSAR v Sim Ka Wing, CACC 450/2000, the Court of Appeal observed that the conventional starting point for burglary can be lowered in the case of an opportunistic burglar, akin perhaps to the “sneak thief” who walks into an open office to steal whatever he can find.  See also HKSAR v Cheung To Ming, CACC 406/2005.

24.  As far as the burglary in charge 1 is concerned, a tent in the concourse of a shopping mall was burgled.  The tent was not locked but surrounded by metal barriers.  According to the CCTV recording, the defendant simply crossed the barriers and walked into the tent.  In the circumstances, I am prepared to accept that a lower starting point is appropriate for charge 1.  However, I also find the facts of charge 1 are more serious than the facts in Cheung To Ming in that valuable computers were stolen as opposed to a few packets of noodle in Cheung To Ming. In the circumstances, I consider the appropriate starting point is 21 months’ imprisonment.  Since the defendant pleaded guilty to the charge, he is entitled to the usual 1/3 discount on his guilty plea.  The sentence is therefore reduced to 14 months’ imprisonment.

25.  For the other burglary offences (i.e. charges 2-5), in the absence of aggravating features, I consider the appropriate starting point for each count of burglary is 30 months’ imprisonment.  Since the defendant pleaded guilty to the charges, the sentence for each count of burglary is reduced to 20 months’ imprisonment for his guilty plea. 

26.  For charge 6, the equipment found is a simple set of equipment.  I consider the appropriate starting point is 9 months’ imprisonment.  Given the defendant’s guilty plea, the sentence is reduced by 1/3 to 6 months’ imprisonment.

27.  All the offences committed by the defendant are entirely separate and distinct offences.  In theory, their sentences should run consecutively.  I have been referred to HKSAR v Hui Yee Lung, CACC 406/2011 and HKSAR v Fan Kit Hung [2009] 6 HKC 314 regarding the overall starting point for multiple counts of burglary.  Having considered these 2 cases as well as the sentencing in DCCC 785/2014 referred to by the defence and HKSAR v Xie Guohong, CACC 384/2003, the facts of the present case and the background of the defendant, I am satisfied that the overall starting point for all the 6 offences should be 5.5 years’ imprisonment.  That would result in a sentence of 3 years and 8 months’ imprisonment after guilty plea. 

28.  To achieve that overall sentence of 3 years and 8 months’ imprisonment, I therefore order that 7 months of the sentence of each of charges 2 to 5 to be served consecutive to the sentence for charge 1 and 2 months of the sentence of charge 6 to be served consecutive to the total sentence for charges 1 to 5, making a total sentence of 3 years and 8 months’ imprisonment.  I hereby sentence the defendant to 3 years and 8 months’ imprisonment.