HKSAR v. LI YIP KIN KEN

DCCC 856/2021

[2022] HKDC 673

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 856 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to the following 4 charges:-

(a)  Burglary; stolen properties were:- $10, one pair of scissors and one metal can.

(b)  Burglary; no stolen property.

(c)  Possession of Part 1 poisons, contrary to S 23(1), 33(1)  and 34 of the Pharmacy and Poisons Ordinance, Cap 138; and

(d)  Possession of an apparatus fit and intended for the inhalation of a dangerous drug, contrary to S 36(1)  and (2)  of the Dangerous Drugs Ordinance, Cap 134.

Summary of facts

2.  The 2 burglary cases took place inside a commercial building located at 18 – 20 Hennessy Road, Wanchai.

3.  On 25 April 2021, PW1 left the restaurant after locking its doors.  Next day when PW1 returned to work, she noticed that there was a prized mark near the doorknob of Room 18 and glue squirted inside the keyhole of the other door of the restaurant.

Case was reported

4.  CCTV of the building showed that the defendant:-

(a)  On 25 April, entered the building at around 5:23 am and left at around 6:07 am; the defendant jostled the door of a Hair Salon for about 10 seconds and the gate of the Tailor shop for about 4 seconds. But he could not enter into either shops.

(b)  He tempered a drawer at the Security Station and took away something.

(b)  On 26 April, he entered the building with intend to steal at around 5:23 am and left at around 5:34 am.

5.  Upon investigation, the defendant was arrested on 27 April 2021 inside Room 1501 of the Empire Hotel located at 33, Hennessy Road.

6.  Upon search of Room 1501, the police found the following items:-

(a)  One plastic packet containing 5 tablets and one tablets fragment contains zopiclone, a part one poisons.

(b)  One glass tube with a bulb shape at one end and one glass bottle inserted with one plastic straw containing traces of a powder containing ice, which could be connected and used as an inhaling device.

7.  Under caution, the defendant said that the part one poisons were for his own consumption while the apparatus was used by him to inhale Ice.

8.  In a subsequent video record of interview on 28 April 2021, the defendant admitted that:-

(a)  He entered the building with intent to steal on 25 April 2021 and he stole $10, one pair of scissors and one metal can from a shop;

(b)  He also re-entered the building on 26 April 2021 with intent to steal again;

(c)  He committed the burglary offences because he was unemployed at the material time and ran out of money.

Criminal Conviction:-

9.  The defendant has a long list of criminal convictions since 1997 to 2020.

(a)  He had 13 court appearances, resulting with 22 convictions related to dishonesty offences.

(b)  Seven of them are convictions of burglary offences between 2007 to 2020.

(c)  He had 9 convictions related to drugs and part one poison offences.

10.  On 5 March 2021, he was discharged from prison and committed the present offences in April 2021.

Mitigation:

11.  The defendant is now 42 years of age, worked as a transportation worker previously. He is also a drug dependent.

12.  The defence accepted that there were aggravating factors in charge 1 and 2.

(a)  He committed the present offences in April 2021, just less than 2 months after he was released from prison in March, 2021.

(b)  There were similar convictions, especially 7 previous convictions related to burglary charges.

(c)  He committed charge 1 and 2 on two consecutive dates involving the same building.

(d)  There were damages to the doornod and keyhole to Room 18 and 20 of the restaurant in the same building in respect of charge 1.

13.  The defence further advanced his mitigation on the burglary charges that no occupants were present in those commercial premises when the burglaries were taken place.

14.  The damage to the premises were minor, the value of the stolen properties were insignificant.

15.  The part one poisons involved 5 and a bit of fragment containing zipiclone, they were for the self-consumption of the defendant.

16.  While the apparatus was for inhaling Ice.

Sentence

17.  It is well established that for non-domestic burglary, the starting point is 2 years and 6 months.

18.  The maximum sentence for charge 3 is 2 years and to a fine at level 6, while charge 4 is to a fine at level 3 and 3 years imprisonment subject to S 54A of the Dangerous Drugs ordinance.

19.  As to the burglary charges, the Defence said that a lower starting point should be adopted by citing HKSAR v Suen Chi Wai [2016] 1 HKC 26.

20.  I disagreed that there is an room for argument to lower the starting point in respect of charge one as the defendant already admitted to the summary of facts that he “jostled the door of the Hair Saloon and the gate of the Tailor shop, he was unable to enter either of the shops.”  The doors of the 2 shops formed part of the commercial units.

21.  In respect of charge 2, the Prosecution informed me that the defendant walked along the common part of the commercial building with intend to steal.

22.  As such, I agreed with the defence that I can adopt a lower starting point for charge 2.  The starting point is therefore 2 years and 3 months.

23.  The defence properly conceded that given the aggravating factors as pointed out previously, a starting point for the burglary charges should be enhanced by 12 months bearing in mind of the cases of:-

(a)  HKSAR v Cheung Wai Kai CACC 338/2007 in relation to aggravating factors;

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

24.  I also consider that these 2 burglary charges are two separate and distinct offences as they took place on two days, albeit occurred in the same building.

25.  As stated in HKSAR v Lau Hiu Man [2013] HKCU 706 that appellant went into the same unit twice within a matter of minutes, the Court of Appeal upheld that the 2 burglary charges were separate and distinct offences.

26.  As to charge 3, the part one poison was found inside the hotel room, they were 5 and a bit of tablets containing zopiclone, I therefore adopted a starting point of 4.5 months, reduced to 3 months’ imprisonment after 1/3 discount.

27.  As to charge 4, there was no evidence that ICE was found at scene, I adopt a starting point of 9 months reduced to 6 months after 1/3 discount.

Conclusion:-

28.  Charge 1:-   starting point is 30 months , enhanced by 12 months, it arrives  at 42 months. Given 1/3 discount, it comes down to 2 years and 4 months (28 months).

Charge 2:- starting point is 27 months, enhanced by 12 months, it arrives at 39 months, given 1/3 discount, it comes down to 2 years and 2 months (26 months).

Charge 3:- 3 months.

Charge 4:- 6 months.

Totality

29.  I order 10 months from charge 2 to run consecutively to charge 1.

30.  Total sentence for charge 1 and 2 arrives at 38 months.

31.  As to charge 3 and 4, I order sentences to run concurrently, however, as they are separate and distinct offences from charge 1 and 2, I order them to run consecutively to charge 1 and 2.

32.  Total sentence is 44 months’ imprisonment.