HKSAR v. KOO TSANG WING also known as LAU WING AND OTHERS

DCCC 870/2019

[2020] HKDC 466

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 870 OF 2019

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Reasons for Sentence

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1.  The defendants have pleaded guilty to an indictment totally containing three charges. The main charge is the 1st charge. The 1st charge constitutes a joint enterprise of burglary committed by all four defendants. The remaining two charges concern the 4th defendant and are essentially motoring offences.

2.  The burglary was committed on 4 May 2019 at a dried seafood shop in Yau Ma Tei.  The burglary was detected by a surveillance operation by the police.  During the operation, the 1st, 2nd and 3rd defendants were seen to enter the building.  The 4th defendant was seen to drive a vehicle which delivered the 1st and 2nd defendants to the location.  He drove away, but later appeared to drive the same vehicle with forged licence plates to the scene.  He admitted that this was to be used to -- as what we describe as a getaway.  All the defendants were arrested in or about the scene of the crime.

3.  A hole was found to have been used to break into the shop.  A hole was broken through a wall and heavy equipment such as a hydraulic jack was used.  Some other breaking equipment was found in the shop.

4.  The vehicle found outside the scene, the 4th defendant’s vehicle, was found to have forged licence plates and it was found later the insurance was not valid.  The 4th defendant had the keys to that vehicle.

5.  The shop had been left secured but there was no actual loss in the burglary besides the damage to the wall.

6.  As far as the defendants are concerned, the 1st defendant has admitted burgling the shop with the 2nd defendant by breaking a hole in the wall.  They said they were looking for money.  The 2nd defendant had admitted involvement in the burglary and assisting the 1st defendant in breaking a hole in the wall.  The 3rd defendant has admitted participation as well.  The 4th defendant has admitted driving the vehicle to the scene and having taken the breaking equipment to the scene, and agreeing to drive them away.    He made forged licence plates for the car, he was acting as the driver and he forgot to renew his insurance.

7.  I turn to the antecedents of the defendants.

8.  The 1st defendant is now aged 62, has a long history of crime including a number of burglaries, a total of nine burglaries most recently in 2016 and 17, sentenced to 28 months’ imprisonment on two occasions.  He is married and has two children.  In fact, he has a total of 19 previous criminal records.

9.  The 2nd defendant is now aged 56.  He is married.  He has 14 previous burglary convictions and a conspiracy to rob.  The 2nd defendant’s most recent convictions were in -- the most recent convictions in 2018 when he was sentenced to 24 months for burglary and there is a large number of convictions and sentences of imprisonment for that offence.

10.  The 3rd defendant is aged only 29.  He has one previous conviction of burglary in 2017.  He is single.

11.  Finally, the 4th defendant is aged 42, has a university education and has worked as a construction worker.  He has no relevant convictions.

12.  Turning to the approach to sentencing.  This is a non-domestic premises burglary.  I think it is common ground the normal starting point for sentence for a conviction after trial for a person of clear record would be one of 30 months’ imprisonment.  The case of HKSAR v Cheng Wai Kai at CACC 338/2007 sets out a number of ways in which that sentence can be adjusted upwards for aggravating factors.

13.  There is always in the definition of such aggravating factors sometimes a degree of overlap but generally the factors which would aggravate sentence are as follows: the offence is carefully planned and skilfully executed using heavy equipment; the offence is committed by two or more people; the offence targets substantial premises or substantial properties; the offender is a professional burglar and not just an opportunist; or the offender has previous convictions, particularly previous convictions of a similar nature.  The last factor is not relevant here, that is the offender commits multiple offences.

14.  In respect of all the defendants, it can be said that the offence was carefully planned and skilfully executed.  It involved the use of heavy equipment involved in breaching the wall using a hydraulic jack, a car and driver was recruited.  Secondly - the second aggravating factor - the offence was certainly committed by two or more people.  I believe it can be said the offence targeted a substantial premises, it was a dried seafood shop. I believe the 1st and 2nd defendants can be classified as professional burglars based on their records.    The 3rd defendant has a previous conviction. Whether that is an aggravating factor in his case, I’ll deal with when sentencing him.  Of course the 4th defendant has no relevant convictions and could not be seen as a professional burglar.

15.  I have been referred to the mitigation of all the defendants and I have considered it, and I will bear that in mind when proceeding to the level of sentence.

16.  I will deal with the 1st charge and each defendant in respect of the 1st charge.

17.  The 1st defendant pleaded guilty on the 1st charge.  I have identified four aggravating factors which, in my view, will increase the starting point for sentence to one of 42 months’ imprisonment. After deduction of a one-third, that would lead to a sentence of 28 months’ imprisonment.

18.  As far as the 2nd defendant is concerned, I reach the same conclusion, the same aggravating factors and the same starting point and deduction therefrom, leading to a sentence of 28 months’ imprisonment.

19.  In the 3rd defendant’s case, there are at least three aggravating factors.  Although the defendant has a previous conviction, in his case I do not propose to set it as an aggravating factor increasing sentence.  This is in order to arrive at the correct overall totality for him and to distinguish his offending from the 1st and 2nd defendants.  I will adopt the starting point of 39 months’ imprisonment for him.  He is sentenced to 26 months’ imprisonment after deduction for plea of guilty.

20.  As far as the 4th defendant’s concerned, on the 1st charge, I will adopt the same approach with him as I did with the 3rd defendant.  I will adopt a starting point of 39 months’ imprisonment, reduce that to 26 months’ imprisonment for his plea of guilty.

21.  On the 2nd charge, that is forgery of documents, I am taking a starting point of 6 months’ imprisonment, reducing that to 4 months’ imprisonment for his plea of guilty.

22.  On the 3rd charge, which is the using a motor vehicle without third party insurance, I am again adopting the starting point of 6 months’ imprisonment, reducing that to 4 months’ imprisonment for his plea of guilty.  I am going to impose a 1 year disqualification for driving.

23.  I consider that the 2nd and 3rd charges are part and parcel of the burglary and the overall total sentence of 26 months, in my view, reflects the criminality of the 4th defendant.  So I am going to order that all sentences of imprisonment be served concurrently to a total of 26 months for the 4th defendant.  There is a 1-year disqualification for driving.  He has his driving licence, he has to surrender it.