HKSAR v. NG YIK HANG

DCCC 916/2020

[2021] HKDC 343

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 916 OF 2020

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REASONS FOR SENTENCE

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1.  Mr Ng pleaded guilty before me to two charges of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.  Particulars of Charge 1 are that Mr Ng, on 10 April 2020, in Hong Kong, having entered as a trespasser part of a building known as Room A, 18^th Floor, Yue King Building, Nos 287-297 Shanghai Street, Yau Ma Tei, Kowloon, stole therein one gold ornament, one iPad, one iPhone with phone case, one wallet, cash of $170 Hong Kong currency, cash of 2 Malaysia Ringgits, cash of $10 Singapore currency, cash of 220 Philippine Peso, cash of 60 Thai Baht, cash of MOP10 Macau Patacas and one jade bracelet.

3.  Particulars of Charge 2 are that Mr Ng, on 30 July 2020, in Hong Kong, having entered as a trespasser part of a building known as Flats A and B, 4^th Floor, Excelsior Building, Nos 358-366 Nathan Road, Yau Ma Tei, Kowloon, stole therein 4 watches, one bracelet, one diamond wrist chain, 7 diamond rings, cash of $10,000 Hong Kong currency and one gold coin.

Summary of the facts admitted by Mr Ng

Charge 1

4.  On 10 April 2020, at around 0245 hours, Mr Ng was seen by a resident of the subject building to be climbing through the scaffolding outside the 18^th Floor of the building.  Case was reported to the police.  At about 0300 hours, Mr Ng took the lift down arriving at the lobby of the building.  He was holding a plastic bag.  Before leaving through the main gate, Mr Ng discarded the plastic bag next to it.  He was stopped by the police on exit.

5.  Upon search there were found on him the cash and the jade bracelet specified in the charge.  Under caution, he admitted he had stolen the bracelet in a burglary he just committed.  Police found in the recovered plastic bag the rest of the items in the charge.  Under caution, he admitted these items were taken in the burglary of the same flat on 18/F.

6.  In the subsequent video-recorded interview, he stated, inter alia:-

(a)  He had the idea of committing a burglary because he had been without a job for 2 months;

(b)  He saw the subject building scaffolding outside so he looked for unlocked and grille-less windows;

(c)  He climbed up to 18/F on the scaffolding where there was a suitable window;

(d)  He entered through that toilet window as there was no one inside;

(e)  He took the stolen property from the flat before leaving through a window in the living room;

(f)  He climbed down the scaffolding and entered the stairwell of the building at 16/F;

(g)  He then took the lift on 14/F before picking up a plastic bag into which he placed some of the stolen property;

(h)  On reaching the G/F lobby, he saw police outside so he discarded the plastic bag before exit.

7.  Police identified the burgled flat to be Flat 18A of the building.  CCTV captured part of the escape journey of Mr Ng.

Charge 2

8.  PW10 and PW9 were husband and wife.  They lived in Flat B, 4/F of another building (“Second Building”) with a domestic helper.  Flat A on the same floor was a studio run by PW10.

9.  On 30 July 2020, at about 1630 hours, while the couple were in Flat A, the domestic helper told PW9 that someone had entered the bedroom of Flat B and locked the door.  The couple opened that door with a key and found signs of ransacking in the bedroom.

10.  On checking, the couple found missing three watches, one bracelet, one wrist chain, 7 diamond rings, $10,000 cash and one gold coin worth a total amount of $527,700.

11.  There was scaffolding surrounding the Second Building.

12.  CCTV captured Mr Ng entered Flat B at 1629 hours.  In the evening of the same day, a bag was found somewhere in the Second Building.  The bag contained some construction tools and Mr Ng’s personal documents.  It was confirmed however that Mr Ng was not involved in the scaffolding project of the Second Building.

13.  Next day, shortly after noon time, police intercepted Mr Ng outside his residence.  Under caution, he admitted commission of the burglary at the Second Building.

14.  Upon search, a number of items including one “CARTIER” watch and one “UNIVERSAL GENEVE” watch were found on Mr Ng.

15.  PW9 positively identified these two watches as belonging to her.

Criminal record

16.  Mr Ng has 2 minor previous convictions for both of which he was fined.

Antecedents

17.  Mr Ng is aged 42 (41 at the time of the offences), educated to middle school level, unemployed at the time of arrest.  Before arrest, he lived with his common law wife and daughter in Yau Ma Tei.

Mitigation

18.  Mr Lawrence Law of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Ng.

19.  The following is a summary of the mitigation submissions.

20.  Mr Ng lived with his common law wife and their daughter aged 2.  He was working as a casual construction worker earning around $25,000 per month.  Due to the pandemic, he was out of a job for two months prior to the offence subject of Charge 1.  Mr Ng pleaded guilty and frankly admitted the two offences to the police.  The basic starting point for domestic premises burglary is 3 years’ imprisonment subject to aggravation.  It is acknowledged that the value of the property stolen might be relatively high though two watches among them (namely one “Cartier” and one “Universal Geneve”) were recovered on arrest.  The goods subject of Charge 1 were also recovered at the time of arrest.

21.  Mr Law submitted that Mr Ng did not use equipment to break into the premises and there was no damage to the premises.  It was also submitted that Mr Ng was an opportunist in that he just took the easy opportunity to climb up the scaffoldings on passing to commit the offences.

22.  Mr Ng’s father was diagnosed to be suffering from meningioma but the latest information is that the brain tumor was benign.

23.  Mr Law submitted on Mr Ng’s behalf 5 mitigation letters written respectively by Mr Ng himself, his common law wife, his father, his elder sister and a trade unionist.  Contents are generally that Mr Ng feels regretful; that he was a loving husband and father, and was the main bread winner; that the recent social events and pandemic caused a collapse of his business turning him to crime; that he was a fresh offender and prayed for a lighter sentence; that he was previously an honest and reliable person; that the family will help him turn a new leaf.

24.  Mr Law asked that the bulk of the two sentences to run concurrently.

Sentence

25.  Burglary of domestic premises is a serious offence.  The usual sentence after trial is 3 years’ imprisonment.

26.  I do not regard Mr Ng to be an opportunistic burglar.  Rather, he has used his construction industry training to effect the two burglaries.  I was tempted to regard him as a professional burglar in that regard but decided not to for the reason that these are his first burglary convictions.

27.  The offence subject of Charge 1 was committed in the early hours of the day hence it can be expected that residents might be sleeping inside the premises.  The situation opened up the possibility of a confrontation with the residents while the burglary was in progress.  This is an aggravation.  For this reason, the starting point for Charge 1 is enhanced by 3 months.

28.  Mr Ng committed the offence subject of Charge 2 whilst on court bail for the offence subject of Charge 1.  This constitutes another aggravation.  For this reason, I shall enhance the starting point for Charge 2 by 3 months.

29.  I do not propose to increase that starting point further despite the substantial value of the unrecovered property under Charge 2.

30.  Mr Ng pleaded guilty in time and therefore is entitled to the full 1/3 discount.  There is no other mitigating factor of sufficient weight to warrant a further discount.

31.  The two offences happened at different times 3 months apart and at different places involving different victims.  Subject to totality, the sentences ought to be served consecutively.

32.  I have taken into account there was no loss of property in Charge 1 and that a small proportion of the stolen property was recovered under Charge 2.

33.  Having considered totality, I adjudge a sentence of 3 ½ years after plea to be justified in the case of Mr Ng, a person who has not been sentenced to a term of imprisonment before.

(Mr Ng, please stand)

34.  For Charge 1, Mr Ng will go to prison for 2 years 2 months.  For Charge 2, he will go to prison for 2 years 2 months, one year and 4 months of which will be served consecutively to the sentence for Charge 1, making an aggregate sentence of 3 ½ years’ imprisonment.