HKSAR v. HAU PAK KWAN

DCCC 888/2023

[2024] HKDC 1118

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 888 OF 2023

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant is convicted of a charge of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210, on his own plea and agreement to the Summary of Facts.

Facts

2.  A community centre was burgled before its operation hours on 12 May 2023.  Keyholes of the lockers on the 5^th floor of the centre were found prized open and a projector (valued at HK$ 6,000)  was missing from one of these locked lockers.  HK$12, one black LG phone (valued at $2,000)  and one Samsung charger in the desk drawer of a security station were also missing.

3.  CCTV in the early hours of 12 May 2023 in the community centre captured the defendant prizing open the storage lockers on the 5^th floor.  The defendant was also seen walking to and from the 2^nd floor and the 5^th floor of the community centre in the 2-odd hours’ interval between 02:13:52 and 04:35:25 hours.

4.  The defendant was intercepted in the street on 15 May 2023 and the missing projector was found on him together with a pair of white sneakers similar to the one worn by the defendant on the day as captured by the CCTV. 

5.  The defendant admitted under caution that he committed the offence and had stolen the projector and the phone due to monetary issue.  He also admitted bursting open the door of the centre in order to gain access to the centre.

Criminal record

6.  The defendant has 35 criminal records involving convictions of 50 charges.  There are 23 convictions relating to dishonesty of which 4 are burglary convictions.  His criminal record dated back to the year 2003.  His last conviction was on 20 October 2022 for which he was sentenced to 2 years’ imprisonment for a similar offence.  He was last released from prison on 14 February 2023.

Mitigation

7.  The defendant is now aged 40 and single.  He has a son who lives apart from him.  Before the arrest, he used to work as a tutor during the day and a delivery worker at night.  His monthly income was around HK$13,000 per month.  It was said that he completed a foundation course in Christianity from Grace International Seminary during his detention at Stanley Prison.

8.  It was said that the defendant was brought up in a middle-class family.  Unfortunately, everything changed during his teenage years when his parents were detained for a court case in early 2000.  He started to deviate and ran away from home.  He is ashamed to mention his background and he is more than shameful to reunite with his family as he does not want to bring detriment to them.

9.  The defendant now has deep reflection after bible studies and he tendered to court a mitigation letter written by himself as well as a certificate from the Grace International Seminary.

10.  Defence counsel invited this court to consider the cases of HKSAR v Cheng Wai Kai, CACC 338/2007 and HKSAR v Sim Ka Wing, CACC 450/2000.

11.  Defence counsel admitted that as the stolen properties include a mobile phone, the loss of which caused tremendous inconvenience to the owner[1], and that as the defendant is a repeated offender, the sentencing starting point may be enhanced.

12.  She said the defendant had a car accident in 2023 and because of his injury, he felt weak and drowsy from time to time.  On the material day, the defendant fainted inside the toilet of the community centre and when he woke up, the premises was closed.  Due to his foolishness and greediness, he began to walk around and see if he could obtain some valuable items.

13.  Defence counsel said that the theft was not pre-planned and the defendant did not use any tool.  The defendant made all the confessions in his cautioned statement and he fully cooperated with the police when he was arrested. Defence counsel suggested that the present case was more akin to an opportunistic burglar. 

14.  She also asked this court to grant the defendant a lenient sentence so that he could start afresh in his life.

Discussion

15.  Before sentencing, this court has carefully considered all that was said or tendered on behalf of the defendant including mitigation letter and the certificate from the Grace International Seminary.

16.  As conceded by defence counsel, it is well established that the appropriate sentencing starting point for a burglary of non-domestic premises in the absence of aggravating or extremely strong mitigating reasons is that of 2½ years’ imprisonment.

17.  The defendant acted alone in this case. This court must point out at the start that the court does not accept the burglary in question an opportunistic one as the 5^th floor was a locked premises and the defendant managed to gain access to the 5^th floor.  The projector was also stored in a locked locker within the 5^th floor.  According to CCTV, he manually prized open the lockers.

18.  The defendant said he went in the community centre at 7:30 pm in order to use toilet facilities.  At 2:13 am, ie about 7 hours later, CCTV caught him moving around for 2 hours.  Had he waken up when the centre was closed, he would have phoned 999 and asked for the fire services’ assistance in order to get himself out.  He said he was reluctant to do so because he was recently released from prison and he did not want to attract police attention, that was contrary to what he did later.

19.  Further, if he was so weak, so much so that he fainted, why would he be able to stay there for hours and be strong enough to prize open the lockers and gain access to the locked premises?

20.  Although the defence counsel mitigated that the defendant was gainfully employed until he met his traffic accident in March 2023, there is nothing in support of that he had actually met such an accident.  The only medical report about the defendant was that he had an abscess in his leg.

21.  This court however accepts that there is an absence of sophistication in the commission of the offence. 

22.  The projector was stored in a locked locker whereas the $12, the phone and the charger were placed in a drawer.  The value of the property stolen is modest and no one is expected to be within the premises at the time.

23.  The appropriate sentencing starting point is 2 years 3 months’ imprisonment. The defendant has 4 previous similar convictions in the past and committed the present offence just 3 months after his release from prison for a similar offence.  He clearly is a persistent offender with no regret for what he has done in the past.  He has not learned his lesson despite all these terms of imprisonment passed on him.  This is an aggravating feature in sentencing and the sentencing starting point is enhanced by 3 months to 2 years and 6 months’ imprisonment.

24.  Having considered the circumstances of the case and all that was said on behalf of the defendant, the most valid mitigating factor is that of his timely plea, for which he is entitled to a full one-third sentencing discount.  The defendant is therefore sentenced to 20 months’ imprisonment.