HKSAR v. LAU KA MING

DCCC 696/2020

[2021] HKDC 355

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 696 OF 2020

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Reasons for Sentence

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1.  The defendant, Mr Lau, has pleaded guilty to a total of nine burglaries. All the burglaries are non-domestic premises. The nine burglaries occurred over a period of about five weeks from 15 April to 22 May 2020. Over a quarter of a million dollars’ worth of property was stolen in the course of these burglaries.

2.  The defendant has admitted the facts that set out the details of those nine burglaries.  I will refer to them in brief for the purposes of sentencing.

3.  The first burglary is recorded as occurring on 15 April 2020.  It was at a meat stall in an estate at Tin Shui Wai.  The stall itself had no rolling shutter door or gate.  Cash of $400 and a Huawei mobile inside a metal cabinet were found to have gone missing in that burglary.

4.  The second burglary occurred on 19 April at a doctor’s clinic in Yuen Long which had a rolling shutter closed and secured with a padlock.  When the burglary was discovered, it was found a padlock valued at $300 had gone missing and a metal box containing cash of $46,166 had also been taken.  CCTV at the shop revealed the presence of the defendant.

5.  The 3rd charge relates to a snack shop in Castle Peak Road which had a rolling shutter secured with a lock.  This was a burglary that occurred on 30 April 2020.  The rolling shutter in that case was prized open with signs of ransacking of the shop.  Total cash of $85,000 went missing from a plastic cabinet inside the shop.  Again, CCTV at the shop captured the defendant’s presence.

6.  The fourth burglary occurs at a Thai restaurant in Yuen Long.  Money was taken from a cashier machine.  A total of $1,500 from the machine and $500 from an adjacent cash box.

7.  The fifth burglary occurred on the same day at a restaurant in Yuen Long.  There was a rolling shutter which was not working and a glass sliding door secured with a padlock.  The padlock was found to be missing and a cashier machine had been prized open and cash of about $6,100 was found to be missing.  Again, CCTV in the area of the shop disclosed the defendant’s presence.

8.  The 6th charge related to a restaurant in Yuen Long.  This was secured with a lock and a metal chain with a padlock.  The metal chain was cut.  There were signs of ransacking at the cashier counter and a total of $46,000 in cash went missing from that property.

9.  The 7th charge related to a noodle shop in Tin Shui Wai.  It was discovered that the lock on the glass door of the shop was prized and damaged.  There were signs of ransacking inside the shop.  Totally $15,000 cash and two Samsung mobile phones valued at $10,000 went missing.  The total value of property inside taken from the shop was estimated at $25,000.

10.  Charge 8 related to a congee shop, again in Tin Shui Wai, on 18 May.  The roller shutter was secured before leaving.  It was found that the roller shutter and the cashier machine in the property had been prized open.  A total of $30,000 went missing from the cashier machine.

11.  The final charge, the 9th charge, was at a Fairwood Restaurant in Tin Shui Wai.  The total amount of money taken is $11,000.  There were prized marks on the glass doors of the shop and also to the door to the manager’s room, and the defendant was captured by CCTV recording.

12.  The facts also record damage was caused to many of the properties and the total value of the damage caused is almost $30,000, $29,550 worth of damage caused to a number of properties in which the burglaries occurred.  The grand total value of cash and other items taken is $256,466, and of which $256,116 was not recovered.

13.  The defendant took part in a number of video-recorded interviews subsequent to his arrest in which the defendant was questioned about and made admissions to the burglaries in respect of Charge 1, 2, 3, 4, 5, 6, 7, 8 and 9.

14.  I turn now to the defendant’s background.  He was aged 41 at the time of the time of the compilation of his antecedents statement. He is now aged 42.  The defendant has some previous convictions.  None of those convictions are relevant to the charge today.  There is no similar convictions.  The defendant has convictions in relation to gambling, assault and arson, for which, finally, he was, in fact, sentenced to 12 months’ imprisonment in 2007, however, it is not relevant to the calculation of sentence in respect of these matters.

15.  I turn now to the mitigation advanced by the defendant.  The mitigation points out the defendant is now aged 42 years old. He is a single man but has been cohabiting with a girlfriend for the 18 months prior to the time of his arrest.  The defendant attended school in Hong Kong to Form 1 and left at the age of 13 years.  He has been employed in a variety of jobs since that time.  However, at the time of his arrest, he had been unemployed for some two months.  In April 2020, the defendant had won some money, I am told, and then was attacked and robbed of the winnings.  He sustained injuries and was unable to resume work after that. 

16.  As far as the mitigation is concerned, the defence urges the approach to be taken by the court to take into account that in respect of the individual burglaries, it can be said that no aggravating features exist.  All the shops involved are ground floor shop premises, most of them being market stalls and restaurants, the burglaries taking place within a period of five weeks and in respect of Charges 4, 5 and 6, the burglaries occurring on the same day as did the burglaries in Charges 7 and 8.  It is said that the longest length of time between the individual burglaries was four days. 

17.  It is submitted that the burglaries themselves were opportunistic because these ground floor premises had little or sometimes no security safeguards and presented easy targets.  It is conceded the cash haul was large and that there were a total of three mobile phones also taken. But the cash amounts largely derive from Charges 2, 3, 6, 7 and 8, with small amounts being found in Charges 1, 4, 5 and 9.

18.  It is said these offences themselves do not feature any of the aggravating factors that could be seen in the case of HKSAR v Cheng Wai Kai, CACC 338/2007.  It is conceded that the main culpability of the defendant lies, firstly, in the amount of money taken and, secondly, in the fact of the number of burglaries that occurred which can see the defendant being labelled as a serial burglar.

19.  Finally, in mitigation, it is said the defendant is remorseful as shown by his guilty pleas and he has asked that credit be given for his full cooperation after his arrest as can be seen from the facts agreed in respect of his video-recorded interviews.

The approach to sentence

20.  It is common ground that these offences are non-domestic burglaries.  There is a guideline sentence in respect of this offence.  The tariff for the offence of burglary of a non-domestic premises with no aggravating or mitigating factors would attract a term of imprisonment of 2½ years as starting point or 30 months as a starting point for a person of clear record after a plea of not guilty.  The authority for that is HKSAR v Sim Ka Wing, CACC 450/2000.

21.  If the court needs to consider whether any aggravating factors exist, the authority for that has already been referred to HKSAR v Cheng Wai Kai.  Such aggravating factors are the use of force, weapons or violence; whether the offences were carefully planned and skilfully executed involving the use of heavy equipment; whether the offences are carried out by more than one person; if the offences target substantial premises or properties; were substantial damage done to the premises; does the defendant have any previous convictions for the offence of burglary; is the defendant a professional burglar or simply an opportunistic burglar.

22.  The defence submits here that none of the normal aggravating factors found in HKSAR v Cheng Wai Kai can be found in the course of the individual burglaries.  Whilst that may be correct there are, of course, aggravating factors found in the amount of money taken which could be described as substantial, the fact that damage was caused to premises, almost $30,000 worth of damage, and also the fact that the offences were part of a substantial series of offences, a total of nine offences, which made the defendant at that time in April and May, a serial offender.

23.  I have been referred to a number of cases by the defence which deal with cases where a substantial number of burglaries are committed by an individual offender.  I have been referred to the HKSAR v Chan Tsz Lung, CAAR 4/1998, where a starting point of 5 years’ imprisonment was adopted for 15 burglaries, and also the case of HKSAR v Fan Kit Hung, CACC 62/2009, where a starting point of 6 years for where 13 burglaries were carried out by a professional burglar.

24.  The cases themselves refer to a number of other authorities which appear to put a starting point for sentence in the region of 5 to 6 years’ imprisonment where one is dealing with a serial burglar.

25.  The approach to sentence, I will take is as follows in respect of each of the individual offences, a total of nine individual offences that the defendant has committed, I will adopt a starting point of 30 months’ imprisonment and reduce that to 20 months’ imprisonment for the defendant’s plea of guilty.

26.  So on Charges 1 through to 9 the sentence of the court will be one of 20 months’ imprisonment.

27.  All these offences are committed separately. They are all capable of being served consecutively.  To order a consecutive service of these nine offences would lead to an absurdly lengthy sentence for these offences so the court must consider to what extent these sentences should be served concurrently and/or consecutively to reach a proper overall total sentence of imprisonment.

28.  In adopting that starting point, I bear in mind the nature of these burglaries, the period of time over which they were committed, the total damage caused, the total amount of money taken and not recovered. I have decided that taking all these factors into consideration the overall starting point for these offences should be one of 66 months’ imprisonment or 5½ years’ imprisonment. 

29.  After deduction of plea of guilty that would lead to a final sentence of 44 months’ imprisonment.  I shall achieve that by ordering the sentence to be served as follows. 

30.  Charges 1 through to 6 are to be served concurrently to each other to a total of 20 months’ imprisonment.  Charges 7 and 8 will be served concurrently to each other, but consecutively to Charges 1 to 6, leading to a sentence of 40 months’ imprisonment.  Of Charge 9, a further 4 months of that will be served consecutively to Charges 1 to 8, the balance concurrently, leading to a total overall sentence of 44 months’ imprisonment.