HKSAR v. TANG PIK HUNG

DCCC 341/2022

[2023] HKDC 1056

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 341 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant was charged with 8 counts of burglary, contrary to section 11(1)(b)  and (43)  of the Theft Ordinance, Cap 210, 1 count of burglary contrary to section 11(1)(a)  and (4)  of the Theft Ordinance, Cap 210 and 2 counts of obtaining property by deception, contrary to section 17(1)  of the Theft Ordinance, Cap 210. The defendant pleaded guilty to the charges, admitted the facts and was convicted accordingly.

FACTS

Charges 1 to 3

2.  On 26 September 2021 at around 10:20 am, the defendant burgled Mr YF Chan’s residence at Shing Wah Building while Mr Chan was sleeping inside the premises.  The defendant entered via an unlocked door.  A wallet containing one staff card, one home visit permit, one HKID card, cash of HK$300, 2 HSBC credit cards (VISA and Master Card), one ATM card and one debit card was stolen by the defendant.

3.  One the same day the defendant used Mr Chan’s HSBC VISA card to make two unauthorised transaction:-

(1)  Purchased 10 bottles of Vita Green Lingzhi valued at HK$6,290 (Charge 2);

(2)  Purchased 2 iPhones valued at HK$22,998 (Charge 3).

4.  Another unauthorized transaction amounting HK$29,927 had been made with Mr Chan’s HSBC MasterCard on the same day.

Charge 4

5.  On 5 October 2021 at around 11:00 am, the defendant burgled Mr PK Chan’s residence at Tai Wah Building while no one was inside.  The metal gate and door were prized open, jewellery amounted to HK$45,000 was stolen by the defendant. The repairing cost of the damaged metal gate and door was about HK$5,000.

Charge 5

6.  On 11 October 2021 at around 3:00 pm, the defendant burgled Mr WH Wan’s residence at Wang Wah Mansion while no one was inside.  The metal gate was damaged and the premises was ransacked.  One iPhone valued at HK$7,000, one Macbook Air valued at HK$10,000 and one “LV” belt valued at HK$4,500 were stolen by the defendant.  The repairing cost of the metal gate was about HK$1,000.

Charge 6

7.  On 11 October 2021 at around 4:00 pm, the defendant burgled Ms CH Lam’s residence at Tsuen Lok Building.  The lady aged 83 was sleeping and alerted by the defendant, seeing the defendant ransacking her cabinets asked him not to do so.  Yet the defendant took away her wallet and two cosmetic bags containing cash of HK$400,000.  The lock of the metal gate gone missing and the door was damaged.

Charge 7

8.  On 17 October 2021 at around 10:52 am, the defendant entered the restaurant “Oyster Moment” at Kwai Ying Building via the unlocked front entrance with the roller shutter halfway up.  Without alerting the staff therein, he took out a glove and wore it on his left hand before opening the drawers at the cashier counter, and took away a mobile phone valued at HK$1,000.

Charges 8 & 9

9.  On 17 October 2021 at around 1:00 pm, the defendant entered Shui King Building and burgled Mr SK Fu’s residence on 20^th floor and Ms MB Wong’s residence on 3^rd floor.  The defendant removed the lock of Mr Fu’s door, entered and ransacked the premises and stole two iPad valued at HK$9,777 (Charge 8).  The defendant broke into Ms Wong’s premises, ransacked therein and stole cash, valuable items, safe deposit box key, Home Visit Permit and one carton box, amounting over HK$20,000.  The repair cost of the metal gate and door was about HK$5,000 (Charge 9).

Charge 10

10.  On 17 October 2021 at about 6:31 pm, the defendant burgled the Church of God at Yuet Loong Building.  The defendant prized open the door of the church, entered the premises with intent to steal.  He used his mobile phone as a torch and ransacked therein, he left about 5 minutes later without taking anything.

Charge 11

11.  On 17 October 2021 at around 6:37 pm the defendant entered Cheung Hung Mansion.  The defendant broke into Mr HW Lo’s residence on the 7^th floor ransacked and stole cash and valuable items amounting around HK$57,900.  The defendant left the building at around 7:44 pm with the stolen goods.

12.  The defendant was arrested on 18 October 2021.  None of the stolen property could be recovered.

MITIGATION

13.  The defendant aged 39, a divorcee since 2012. At the time of the offences in 2021, he was a warehouse worker earning around HK$15,000 per month and was living with his parents, his son and an elder sister.   

14.  The defendant has 10 criminal records, 13 counts in total, including 2 counts of burglary, 1 count of attempt burglary and 1 count of using a false instrument.  His was last sentenced to 20 days in 2015 for possession of dangerous drugs, and had not committed any dishonest-related offence in the last 16 years.

15.  The defendant was not a serial burglar before the present case.  He was not a professional burglar.  Charge 1 and Charge 7 were opportunistic in nature.  In other charges, he gained access by forced entry and/or using basic tools.  No substantial damage caused to the various premises.  No signs of ransacking for Charges 1, 4 and 7.  He committed the offences during daytime and looked for unoccupied flats.  The elderly lady of Charge 6 was not injured.  On his calculation, the stolen property amounted to a total of about HK$555,969.  He committed the offences because he was in debts but with the assistance of his family, he is now debts free.  Yet he is not in a position to compensate the victims.  He did not steal from the Church because he thought it was a church. 

16.  The defence urged the court to deviate from the general guideline in Charge 1 and Charge 7 and adopts 20 months and 18 months respectively; for Charges 4 to 6, 8 to 11 to adopt the normal starting point of 3 years and not to enhance more than 3 months; and to adopt a global starting point of no more than 6 years’ imprisonment for the burglaries.   

17.  The defence further urged the court to adopt a starting point of 2 years’ imprisonment for the OPBD Charges, taking these as one incident, and allows part of that term concurrent with that of the burglaries.

SENTENCE

18.  The customary starting point of sentence for non-domestic burglary is 30 months’ imprisonment, and 3 years’ imprisonment for domestic burglary.  Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point.  The conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value. 

19.  Yeung JA, as he then was, said in HKSAR v Cheng Wai Kwai CACC 338 & 339/2007 a case of burglary of non-domestic premises:-

“The proper starting point for sentence in a case of burglary of non-domestic premises is 30 months’ imprisonment (see R v Wong Man unreported, CACC 372/1992). 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 instrument 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 conviction of similar nature, and (6)  the offender commits multiple offences.”

These factors equally applicable to domestic burglary.

20.  The defence referred to HKSAR v Ali Tahir DCCC 631, 911 & 1091/2016 & DCCC 111/2017 (Consolidated), the defendant in that case committed 5 domestic burglaries over a period of 8 months.  Four out of five, the main door of the premises was prized opened with tools.  Judging from his modus operandi, the court refused to treat him as a “sneak thief” in the remaining one, though the lock of that metal gate was not functioning and the wooden door was not fully closed, taking the view that he would have prized open the door if it was properly closed and locked.  Applying the usual starting point of 3 years’ imprisonment and enhanced by 3 months for those committing while on police bail and enhanced by 6 months for the one involving high value of stolen property (in that case about HK$183,969).  The overall criminality attracted a starting point of 5 years’ imprisonment and reduced to 40 months for the defendant’s plea of guilty.

21.  The defence also referred to HKSAR v Fan Kit Hung [2009] 6 HKC, in that case the defendant pleaded guilty to 13 charges of non-domestic burglary and was sentenced to 6 years’ imprisonment.  The burglaries involved various shops at different locations in Hong Kong over a four-month period.  The total value amounted to $130,825, consisting of cash, clothing and other items.  The Court of Appeal allowed his appeal against sentence and reduced to a total sentence of 4 years, equivalent to an overall starting point of 6 years.

22.  The defendant in the present was not an opportunist, he was a serial burglar.  He committed 9 burglaries (only two were non-domestic burglary, the restaurant and the Church)  in 22 days between 26 September 2021 and 17 October 2021, of which 2 were committed on 11^th October, 5 were committed on 17 October and he was arrested on 18 October 2021.  Judging from his modus operandi, the defendant was out to look for targets, he would have damaged the lock/door if required in Charge 1 and Charge 7.  Further, for Charge 1, the consequential loss of the victim/the bank was beyond the property stolen because the defendant not only used one of the stolen credit card to make unauthorized transactions, the other credit card stolen by him was also used by someone to make unauthorized transaction. The usual starting point applies to the burglaries except the one related to Ms Lam (Charge 6). 

23.  The most serious one was the burglary related to Ms Lam, the defendant broke into her premises, the lady aged 83 was alerted.  Upon seeing her premises being ransacked by the defendant, she requested him to stop, yet he stole the lady’s saving amounting HK$400,000 in her face.  I consider the proper starting point should be 45 months (3 months for alerting the lady, and 6 months for the HK$400,000 cash he stole).

24.  In mitigation, the defence submitted that the defendant did not steal from the Church because he thought it was a church upon seeing the setting of the furniture therein, this I do not accept.  He prized/forced open the door of the premises and ransacked therein, I am with the view that nothing was stolen simply he found nothing of value to him.  The name of the Church was affixed on the door.  If he had no intention to steal from a church, why would he broke into the premises in the first place.

25.  Although the number of burglaries was less than that in the case of Fan Kit Hung, but 7 out of 9 here were domestic burglaries and occupants were present in Charge 1, Charge 6 and Charge 7, Ms Lam in Charge 6 was actually alerted.  Further, the value of the stolen property was much higher in the present case.  On defendant’s calculations, the stolen property amounted to a total of about HK$555,969.  I consider the overall criminality of the burglaries attracts a starting point of 6 years’ imprisonment.  The defendant is entitled to 1/3 discount for his plea and I do not consider there to be any mitigating factor that calls for further reduction.

26.  For Charges 2 & 3, the defence referred to HKSAR v Li Chi Yat CACC 189/2018.  The Court of Appeal in that case emphasised “that the sentencing authorities in relation to credit card fraud cases recognise that small-scale credit card offences cannot be subjected to strict guidelines because they can vary significantly in a number of ways and that a starting point of 3 years’ imprisonment or less would be appropriate.” 

27.  In case of Li Chi Yat, the victim left his wallet in a vehicle that the appellant later used to do a delivery job. The appellant took the opportunity to steal the victim credit card and later used the card on 3 occasions and successfully purchased a mobile phone in the sum of $7,917 in one shop.  The actual loss was under HK$8,000 and the potential loss, as represented by the credit card limit, was HK$20,000.  The Court of Appeal considered this was a case of credit card fraud at the low end of the scale of criminality and with the view that the appropriate starting point on each of the deception charges should be 2 years’ imprisonment and did not disturb the concurrent sentences on the charges.

28.  For Charges 2 & 3, the defendant used one of the stolen credit card to made two unauthorized transactions on the same day amounted to HK$6,290 and HK$22,998 respectively.  I agreed a starting point of 24 months’ imprisonment on each charge would be appropriate and the two can be taken as one incident.  However, the theft of the credit card was a separate and distinct criminal act from his subsequent fraudulent use of it.  The defendant is entitled to 1/3 discount for his plea but I do not consider there to be any mitigating factor that calls for further reduction.  Taking into consideration of the totality principle, I would order 4 months of the term to run consecutive to that of the burglaries.

ORDER

29.  Charge 1 24 months’ imprisonment;

Charge 2 16 months’ imprisonment, concurrent with Charge 3;

Charge 3 16 months’ imprisonment, concurrent with Charge 2;

4 months of Charges 2 & 3 consecutive with the other charges;

Charge 4 24 months’ imprisonment, 3 months consecutive with others;

Charge 5 24 months’ imprisonment, 3 months consecutive with others;

Charge 6 30 months’ imprisonment, 5 months consecutive with others;

Charge 7 20 months’ imprisonment, 2 months consecutive with others;

Charge 8 24 months’ imprisonment, 3 months consecutive with others;

Charge 9 24 months’ imprisonment, 3 months consecutive with others;

Charge 10 20 months’ imprisonment, 2 months consecutive with others;

Charge 11 24 months’ imprisonment, 3 months consecutive with others;

Making a total of 52 months.