HKSAR v. LAU SIU LAM

DCCC 650/2021
(Heard Together with DCCC 863/2021)

[2022] HKDC 1187

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 650 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 2 charges of burglary in DCCC 863/2021 and one charge of burglary in DCCC 650/2021.

2.  As to the 3^rd charge in DCCC 863/2021, this court ordered the charge to be left on court’s file and not to be proceeded with without the leave of the court.

Summary of facts

3.  The case of DCCC 863/2021 involved 2 burglaries which took place:-

(1)  On 15 November 2020, at about 4:26 pm the defendant entered a restaurant and stole an AirPods Pro which costs about $2,000.

(2)  On 10 April 2021, at about 8:30 am, the defendant entered a veterinary clinic. A camera worth about $13,641 was stolen by the defendant.

4.  All the premises were unlocked at the material time.

DCCC 650/2021

5.  On 18 April 2021, at around 10:45 am, the defendant entered a sub-divided flat in Yau Ma Tei and stole a handbag ($600)  which contained an identity card, 3 ATM cards, 3 credit cards, One iPhone ($8,000), a pair of diamond earrings ($17,000)  and cash of HK$480.

6.  At the material time, PW1 left her room with the door half opened to discard rubbish.

7.  The defendant was arrested on 22 April 2021 and he admitted in the record of interview that he stole the handbag and sold the iPhone for $800.  He had spent all the money.  The handbag was discarded after he took the cash and iPhone.

CCTV

8.  All the above 3 incidents were captured by CCTV.

Criminal record

9.  The defendant has a long list of criminal convictions since 1997 to 2020.  Altogether there were 71 previous conviction records.  There were 3 convictions of burglary in 1996 and 2010 and also generally offences of dishonesty, largely of theft.

Background/Mitigation

10.  The defendant is now aged 51, he was previously a printing worker earned about $9,000 per month.  At the time of arrest, he was unemployed.

11.  As far as mitigation is concerned, it is pointed out that the 2 charges in DCCC 863/2021 were non domestic burglary which attracted a sentence of 2½ years, as for DCCC 650/2021, it was a domestic premise, sentence guideline is 3 years.

12.  The antecedent record also showed that he is a drug addict.

Sentence

13.  It is rightly pointed out by the defence of the sentencing guideline of the 2 types of burglary offences.

14.  To determine the starting point of these offences, this court has to take into account that all the premises were unlocked at the material time.  It is clear to me that there was an element of opportunity involved in each case.

15.  There was no one present in the premises to confront the defendant.

16.  All the stolen properties have not been recovered.

17.  I considered that a starting point for each charge in DCCC 863/2021 should be 2 years.

18.  As to DCCC 650/2021, I considered that a starting point of 30 months is appropriated.

19.  However, there are bases on which the sentence can be adjusted upwards as a result of the aggravating factors.  Such as careful planning and skillful execution; use of heavy equipment; multiple professional offences; multiple offenders; previous convictions, particularly previous convictions of a similar nature.  HKSAR v Cheng Wai Kai CACC 338/2007 refers.

20.  As far as present case is concerned, there are a number of aggravating factors:-

(a)  The defendant committed the 3 burglary offences over a period of about 5 months.

(b)  He has an appalling records.

(c)  He committed the first charge of burglary in DCCC 863/2021 two months after he was discharged from prison after serving sentence of ESCC 511/2020.

(d)  He committed the second charge of the burglary offence in DCCC 863/2021 and the offence in DCC 650/2021, 3 months after he was discharged from prison after serving his 2 months’ sentence in ESCC2636/2020.

(e)  The repetition of the defendant committing the same offences increased the gravity of these offences.

(f)  His mitigation for committing the present offences was simply non-existent.

21.  It all goes to show that the defendant is a persistent offender and he committed offence/offences within a short period of time each time after he was released from prison.

22.  The defence accepts that enhancement of sentence is inevitable.  Nonetheless, still asked for a lenient sentence including not to enhance the sentence too much.

23.  I disagree. I consider that the enhancement of sentence must be substantial in order to have a deterrent value, otherwise it will lose its deterrent effect.

24.  To this end, I considered for all the sentences in both cases should be enhanced by 12 months bearing in mind of the cases of:-

(a)  HKSAR v Cheung Wai Kei in CACC 388/2007 and

(b)  The sentencing principle of persistent offender as stated in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830.

25.  The sentence of DCCC 863/2021:-

(a)  The starting point for each charge is 2 years enhanced by 12 months, it arrives at 3 years, given 1/3 discount, it comes down to 2 years.

(b)  12 months from charge 1 is ordered to run consecutively to charge 2.

(c)  It arrives at a total of 3 years.

26.  The sentence of DCCC 650/2021

(a)  The starting point is 30 months, enhanced by 12 months, it arrives at 42 months, given 1/3 discount, it comes down to 28 months, that is 2 years and 4 months.

27.  Totality

(a)  I also order 8 months from DCCC 650/2021 to run consecutively to DCCC 863/2021.

(b)  The total sentence arrives at 3 years and 8 months.