HKSAR v. LAU WAN

DCCC 1308/2023

[2024] HKDC 814

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1308 OF 2023

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REASONS FOR SENTENCE

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1.  Mr Lau (D2)  pleaded guilty before me to one charge of Attempted burglary (Charge 1), contrary to section 11(1)(a)  and (4)  of the Theft Ordinance, Cap 210, and sections 159G and 159J of the Crimes Ordinance, Cap 200; and one charge of Burglary (Charge 2), contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.

2.  Particulars of Charge 1 are that D2 and Chan Ting Him (previously D1 and hereinafter referred to as D1), on 13 August 2023, in Hong Kong, attempted to enter as trespassers part of a building known as Room No 45, Flat A, 1^st Floor, Jumbo Industrial Building, No 189 Wai Yip Street, Kwun Tong, Kowloon, with intent to steal therein.

3.  Particulars of Charge 2 are that D2 and D1, on 13 August 2023, in Hong Kong, having entered as trespassers part of a building known as Room No 46, Flat A, 1^st Floor, Jumbo Industrial Building aforesaid, stole therein one game console with one charger and two controllers, and 3 games.

Facts admitted by D2

Charge 1

4.  On 13 August 2023, between 1001 and 1024 hours, CCTV system installed at the corridor of Flat A, 1^st Floor, Jumbo Industrial Building in Kwun Tong captured the following:-

(a)  D2 tried to prize open the locked door of Room 45 with long-shaped tools; and

(b)  D1 bumped his body against the door of Room 45 twice and attempted to prize open the door with a long-shaped tool.

Charge 2

5.  On the same day, at about 1027 hours, the same CCTV system captured the following:-

(a)  D2 took a yellow card from a room numbered 43 (beside Room 45)  and entered Room 46 by inserting the card into the gap between the lock and the door frame while D1 waited outside Room 46; and

(b)  D2 left Room 46 at about 1029 hours.

6.  At the same time, the CCTV system installed inside Room 46 captured the following:-

(a)  D2 stole one game console with one charger and two controllers, and 3 game cards (valued at $3,181 in total)  from Room 46; and

(b)  D2 left the card (which turned out to be a point card)  on the floor of Room 46.

7.  The property stolen from Room 46 were neither insured nor recovered.

8.  On 18 August 2023, the police arrested D2.

9.  D2 now admits that on 13 August 2023, he and D1 attempted to enter as trespassers Room 45, with intent to steal therein.

10.  D2 now admits that on the same day, he and D1 acted in concert in a burglary, ie having entered as trespassers Room 46, stole the property listed under Charge 2.

Criminal record

11.  D2 has 37 previous convictions, 20 of which were related to offences of dishonesty.  His last 3 convictions (including one for conspiracy to steal)  resulted in his being imprisoned for 25 months in total with the date of release being 30 September 2022.

Antecedents

12.  D2 is aged 45 (44 at the time of the offences), educated to P6 level. He was a tattoo artist at the time of the arrest.  D2 was living alone.

Mitigation

13.  Mr Terry Kan of counsel assigned by the Director of Legal Aid mitigated on behalf of D2.  The following is a summary of the mitigation submissions.

14.  D2’s father passed away while D2 was being detained for this case.  D2 felt guilty for not being able to see his father off.  D2’s mother is aged 70. She previously suffered from a stroke, and needed special care.  D2 has two younger brothers one of whom is 44 years old.

15.  D2 was a tattoo artist until he was arrested, earning $20,000 a month.

16.  D2 knew D1 through a common friend two days prior to the offences.  D1 showed interest in getting tattoos on his body.  On the day of the offences, D2 went to visit D1 at a party room (a room next to Room 45)  rented by D1 to discuss the tattoo matter.

17.  D1 asked D2 to help him prize open the door of Room 45.  D2 tried but failed.

18.  D1 asked D2 to go into Room 46.  D2 did so; and he took from inside the room the game console with some games and handed them over to D1.

19.  The main mitigation is D2’s pleas of guilty.  D2 is remorseful and promises not to re-offend.  He begs for the court’s leniency.

20.  The maximum sentence for the offence of burglary is 14 years’ imprisonment.  The Court of Appeal has set down clear sentencing guidelines for this offence.  For burglary of non-domestic premises, the appropriate starting point would be 2.5 years’ imprisonment (see R v Wong Man, CACC 372/1992).

21.  For Charges 1 & 2, Mr Kan urged the court to take a starting point of 30 months’ imprisonment.

22.  D2 pleaded guilty so is entitled to 1/3 discount.  D2 is willing to make compensation for the victim’s loss (Charge 2).  However, from the Reasons for Sentence of D1’s case, it appears that D1 has already made compensation to the victim.  It is the intention of D2 to share and split the compensation with D1.  Mr Kan asked for a deduction of 3 months from the sentence because of D2’s offer to share and split.

23.  Mr Kan asked that the sentences on Charges 1 and 2 be served concurrently because the related offences were part and parcel of the same plot.

24.  Mr Kan submitted on behalf of D2 a mitigation letter written in Chinese by D2 himself.  The contents are generally that D2 is truly regretful and promises he will henceforth become a normal person and he hopes the court would give him a last chance so he can upon release take care of his mother as soon as possible.

Sentence

25.  D1 has been dealt with separately by a different judge: Reasons for Sentence in Chinese, [2024] HKDC 392 refers.

26.  On Charges 1 and 2, taking into account the offences were committed by two persons, not one, but bearing also in mind the unsophisticated nature of those offences, so, as urged by Mr Kan, I will take an initial starting point of 30 month’s imprisonment for each charge.

27.  D2 has an awful record of dishonesty-related offences.  For this reason, I shall increase each of his starting points to 33 months’ imprisonment.

28.  D2 pleaded guilty in good time for which he shall be entitled to the customary 1/3 discount in sentence.

29.  Because of the short space of time between the occurrences of the two offences, I will treat them as one criminal activity (especially when there was no loss of property under Charge 1).  For this reason, I shall order the related sentences to run concurrently.

30.  An offer to compensate is not a mitigating factor.  Even if I were to allow a short deduction in sentence on this score, it would only operate under Charge 2 but not Charge 1.  As such, it would not assist D2 because of the concurrency of the sentences.

31.  There are no other mitigating factors that I can see which will have the effect of reducing the sentence further.

(D2, please stand)

32.  On Charge 1, the sentence is 22 months’ imprisonment.

33.  On Charge 2, the sentence is 22 months’ imprisonment.

34.  I order the sentences to run concurrently with one another.