HKSAR v. LAU SHING KAI

DCCC 1011/2020

[2021] HKDC 510

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1011 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of burglary of a shop with another person unknown, contrary to section 11 of the Theft Ordinance[1].

2.  Full particulars of the offence are set out in the summary of facts admitted by the defendant today. 

3.  In summary at around 9 p.m. on 11 August 2020 Ms Lai, the manager of “Superdry” shop on the Ground Floor of Mira Place 1, No. 132 Nathan Road in Tsim Sha Tsui, secured the roller shutter of the shop before leaving.

4.  At around noon the next day, 12 August 2020, when Ms Lai returned to the shop she discovered that ten polo shirts and four pairs of shorts valued at $11,066 were missing from the display rack next to the entrance.  Ms Lai found no prize marks on the roller shutter. 

5.  CCTV of the shop captured the defendant at around 4:34 a.m. on 12 August 2020 lingering near the entrance of the shop during which time he was seen talking on a mobile phone.  At around 5:16 a.m. an unknown male arrived at the shop. The defendant was then seen putting clothes into a bag the unknown male was holding.  About a minute later the defendant and the unknown male left together. 

6.  I have viewed the CCTV footage between 04:34 when the defendant is first seen entering Mira Place 1 until 05:18 when the defendant is seen leaving together with the other person unknown.   Three screen captures have also been submitted to court.

7.  CCTV of the Prudential Hotel situated at No. 222 Nathan Road captured the defendant leaving the hotel at around 4:28 a.m. and returning at 6:33 a.m. when he was wearing different clothing.

8.  The defendant was arrested on 14 August 2020 inside Room 632 of the Prudential Hotel.  Inside the room the police recovered four of the polo shirts and one pair of the shorts.  The police also recovered the clothes the defendant was wearing when he left the hotel and was seen outside the shop. 

9.  Under caution and in a video-recorded interview the defendant, inter alia, admitted that he waited at the entrance of the shop for half an hour because it was raining; he saw a gap between the shop window and the entrance through which he could reach his hand into the shop; he committed the offence with his friend Ah Keung; he stole the clothes out of greed and because his clothes were wet; he changed into new clothes; he gave some of the clothes to Ah Keung and threw away the clothes that did not fit him.

Mitigation

10.  In passing sentence, I have carefully considered the oral and written submission of Mr Lo on behalf of the defendant who is 42 and married with his wife living in the mainland. 

11.  I take into account the defendant has no previous convictions for burglary and apart from three minor convictions for gambling in 2018 and 2019, the defendant has not been before the court since 2015.

Burglary

12.  The correct starting point for a single burglary of commercial premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months’ imprisonment.

13.  Mr Lo submits the burglary was opportunistic, the defendant only stretching his hand inside the shop to take the clothes[2]. In support of this submission Mr Lo refers the court to HKSAR v Cheung To Ming[3].

14.  The burgled premises in that case were the Mai Po Marshes Wildlife Education Centre and Nature Reserve.  The window next to the front door had been broken and the main door left open.  Nothing of any real value was taken.  Ten empty packets of instant noodles were found on a table in the kitchen.

15.  The defendant, an illegal immigrant, admitted that when he went past the Centre he noticed the door had been left ajar and as he was hungry he entered the Centre and cooked two packets of instant noodles.  The Court of Appeal were satisfied that the only safe basis for dealing with the defendant was to regard him as a ‘sneak thief’ who was able to walk into the Centre after others had broken into the Centre. 

Sentence

16.  As noted already the defendant told the police he saw a gap between the shop window and the entrance through which he could reach his hand into the shop.  The manager of the shop having found no prize marks on the roller shutter seemingly was not asked how the clothes could have been taken out of the shop.  No photograph of the entrance of the shop was taken by the police. 

17.  Save that there is no evidence that the defendant was the one who made the gap between the window and the entrance of the shop, the facts in Cheung To Ming bear no resemblance to the burglary committed by the defendant. 

18.  The defendant did not simply pass by an open door or vacant premises to steal food or items of little value.  The defendant not only stole clothing valued at $11,066, he also called someone to help him commit the burglary and take away the stolen property. 

19.  The commission of burglary by two or more persons is an aggravating feature of  sentence[4].  In the circumstances I enhance the starting point by 3 months to 2 years and 9 months’ imprisonment.

20.  Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 1 year and 10 months’ imprisonment.