HKSAR v. LEUNG CHI WAI

DCCC 1274/2024

[2025] HKDC 1896

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1274 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant is convicted of 2 charges of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210, on his own plea and agreement to amended Summary of Facts (Charges 1 and 3).

2.  As for Charge 2, the same is left on court file and not to be proceeded with without leave of the court. 

Facts

Charge 1

3.  At the material time, a branch of Hang Seng Bank in Lucky Plaza (“Shop 1”) was under renovation.  The premises was surrounded by wooden planks with wooden doors secured by padlocks. 

4.  On 4 June 2024 at 1815 hours, after checking that all properties and tools were properly placed in Shop 1, PW1 locked the wooden doors and left. 

5.  On 5 June 2024 at 0854 hours, PW1 returned and found that a wooden door of Shop 1 was left ajar and two padlocks were missing.  The two broken padlocks were then recovered from the rubbish bin inside the shop.  Upon checking, PW1 found that nine rolls of electric wires, one level gauge, one charger, one hydraulic drill, one grinder, one jigsaw, and one electric saw were missing. Total value of the missing renovation tools was HK$27,600.  A report was made to the police. 

Charge 3

6.  On 9 June 2024 at about 2240 hours, the subject restaurant (“Shop 3”) was closed.  Before the door of the restaurant was locked and PW2 left the restaurant, he checked that five Nokia mobile phones were properly placed in the drawer under the cashier machine. 

7.  At about 2352 hours on the same day, the alarm bell of the restaurant was triggered.  However, at that time, nothing suspicious was found from the CCTV footage. 

8.  On 10 June 2024 at 0640 hours, the restaurant opened and the five Nokia mobile phones in total value of about HK$5,000 were found missing.  CCTV captured a male (later found to be the defendant) entered the restaurant via the main entrance of the shop at 2346 hours on 9 June 2024 and he took away the five Nokia phones from the cashier counter.  A report was made to the police. 

CCTV in relation to Charge 1

9.  CCTV of the defendant’s residential building captured on 4 June 2024 at 16:57:26 hours, the defendant took the lift and went down to the G/F of the building, and he left the building at 16:58:11 hours. 

10.  CCTV of Lucky Plaza captured on 4 June 2024 at 19:25:45 hours, a male (later found to be the defendant) walked past Yu Lam Court, Lucky Plaza.  At 19:27:01 hours, he came to Shop 1 and tampered with the wooden planks surrounding the entrance.  At 19:29:02 hours, it appeared that he used a grinder to tamper with the wooden door.  He later at 19:44:39 hours walked away from the entrance of the Shop 1 while pushing a metal trolley full of stuff.  He then walked past Lucky Plaza with the trolley. 

CCTV in relation to Charge 3

11.  CCTV of Shop 3 captured on 9 June 2024 at 23:46:26 hours, the roller shutter of the shop was being raised.  At 23:46:41 hours, a male (later found to be the defendant) sneaked into the shop and ransacked the cashier counter.  At 23:46:57 hours, he took away some mobile phones from the drawer and then he left the shop. 

Arrest and caution

12.  On 11 June 2024 at 1105 hours, the defendant was arrested by police for burglary.  Under caution, he admitted the offence and that he already sold the stolen properties in Sham Shui Po.  Upon arrest, one of the stolen items, namely, a Nokia mobile phone of Shop 3 was recovered from the defendant.  Under caution, he admitted he was wearing such clothes as appeared in the CCTV. 

13.  In the subsequent video-recorded interview, the defendant admitted the offences as captured by the CCTV. 

Criminal Record

14.  The defendant has 37 previous records involving conviction of 45 charges, of which 30 relate to dishonesty of which 7 are similar.  He had his last similar conviction on 8 August 2023, for which he was sentenced to 23 months’ imprisonment.  He was sentenced together with the sentence of another charge to prison for a total of 29 months and he was discharged from prison on 9 January 2024. 

Mitigation

15.  The defendant is aged 50.  He received education up to Form 2, after which he worked as a renovation worker and a construction worker.  He had also been working for his younger brother in his car plate manufacturing business. He started working at a very young age but he mingled with undesirable peers and had committed offences over the years.  When he was working for his younger brother, he had a salary of HK$13,000.  Unfortunately, he indulged in gambling and he committed the present offence. 

16.  Defence counsel said the defendant had a daughter born out of his former relationship with his former girlfriend and he was applying for guardianship of his daughter.  Because of the commission of the present offence, he was arrested and detained, and his daughter had to be kept in foster family.  The defendant’s family have visited the daughter and informed the defendant of her updated position. 

17.  Defence counsel said that the defendant is now deeply remorseful and shameful as he has failed the support of his mother and younger brothers, and his wrongdoing had caused his daughter to stay in foster home.  It is said that he is determined to start afresh and to be a responsible father. 

18.  The Social Welfare Department has informed the defendant that upon his release, he would need to undergo constant urine tests in order to satisfy the department that he no longer has any vice habits before the department would support his application for guardianship of his daughter with the Family Court.

19.  The defendant asked this court for a last chance.  Defence counsel handed to court the mitigation letter written by the defendant as well as the letter from Social Welfare Department to the defendant. 

20.  Defence counsel conceded that for Charge 1, the starting point of 2½ years’ imprisonment is appropriate as it involved non-domestic premises. 

21.  As for Charge 3, defence counsel submitted that this case is similar to the case of opportunistic burglary because the electric roller shutter of the restaurant was unlocked at the time, the defendant saw it and took the opportunity to wrongfully sneak into the shop and stole the five mobile phones.  It is also said that the actual loss to the restaurant was four mobile phones as one has been recovered.  She submitted that the starting point of 18 months’ imprisonment is appropriate for Charge 3. 

22.  Defence counsel also conceded that the defendant is a persistent offender and the court would be minded to enhance his sentence.  She urged this court to impose a minimal enhancement to the sentencing starting point in order that the defendant could be released as soon as possible. 

23.  The mitigation letter from the defendant to this court said that his family has been supportive of him and he now wants to start afresh to set a good example for his daughter.  He also said that he would work for his brother and to remedy the wrongs that he had done in the past and he asked this court for a chance. 

Discussion

24.  Before sentencing, the court has carefully considered all that was said on behalf of the defendant as well as the mitigation letter from the defendant. 

Charge 1

25.  Doors to Shop 1, a non-domestic premises, was locked at the time of the offence.  The defendant used a grinder to gain entry to the shop.  It is noted the defendant here acted alone.  The value of the renovation tools total HK$27,600 which is a modest sum. 

26.  The appropriate sentencing starting point is 2½ years’ imprisonment.  However, the defendant is a persistent offender as one could see from his criminal record, he committed the present offence about 5 months after his release from prison for a similar conviction, and this is his 8^th burglary conviction.  For this reason, the sentencing starting point is enhanced by 3 months to 2 years 9 months’ imprisonment. 

27.  The most valid mitigating factor is the timely plea of the defendant and he is therefore entitled to one-third sentencing discount.  He is sentenced to 22 months’ imprisonment for Charge 1. 

Charge 3

28.  The box within which the control button for the roller shutter of Shop 3 situate was not locked at the time when the defendant walked past.  The roller shutter of Shop 3 was fully down, though not locked.  The defendant did not need to use any tools to gain entry to the shop.  What he needs to do was just to open the door of the box and pressed the button for the roller shutter to be raised. 

29.  The facts of this case, however, was not the same as the cited case HKSAR v Cheung To Ming [2006] 2 HKLRD 259 where the door to the non‑domestic premises was simply left ajar.  However, it is true that planning or premeditation could be absent in this case. 

30.  The total value of the five stolen phones is HK$5,000, of which one has been recovered and four were actually lost. 

31.  Having considered the circumstances of the case, the court agreed to the suggested sentencing starting point by defence counsel and set the same at 18 months’ imprisonment. 

32.  Again, the defendant is a persistent offender and this is an aggravating feature in sentencing.  The court will enhance the sentencing starting point by 3 months to 21 months’ imprisonment. 

33.  He has pleaded guilty and is therefore entitled to one‑third sentencing discount.  He is sentenced to 14 months’ imprisonment for this charge. 

Totality principle

34.  Considering the proximity of the date of the offences, ie 4 days apart, involving different non‑domestic premises, and considering the overall criminality of the defendant, the just and proportionate total sentence for the defendant (after plea) would be 28 months’ imprisonment.  Accordingly, 6 months of the sentence for Charge 3 is to run consecutive to the sentence in Charge 1, the rest to run concurrently. 

35.  The defendant is therefore sentenced to a total of 28 months’ imprisonment in this case.