HKSAR v. WONG SUI KWONG AND OTHERS

DCCC 713/2020

[2021] HKDC 790

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 713 OF 2020

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  All the defendants pleaded guilty to one count of attempted burglary, contrary to section 11(1)(a)  and (4)  of the Theft Ordinance, Cap 210.

2.  Full details of the offence is set out in the facts admitted by the defendants.  In summary, this is an attempted burglary case which took place in a non-domestic premises.

3.  At all material times, Wong Kwok Wing (hereinafter called “Mr Wong”)  was a staff of a company situated at Room B3, 9^th Floor (hereinafter called “Room B3”)  in a building in Tai Kok Tsui area (hereinafter called “the Building”).

4.  Around 4:35 am on 15 June 2020, when Mr Wong was working in Room B3, he saw (via the CCTV)  some males wandering in the corridor at 9/F of the Building (hereinafter called “the Corridor”).  Thereafter, a male used a plastic bag to cover the CCTV camera installed outside Room B3.  Mr Wong then reported the above to the Police.

5.  About 4:50 am on the same day, police officers spotted the 3^rd defendant in the staircase at 2^nd Floor of the Building, walking down the stairs and acting furtively.  Upon enquiry, the 3^rd defendant stated that he lived in Room B of the 1^st Floor of the Building.

6.  About 35 minutes later, police officers spotted the 1^st defendant and the 2^nd defendant hiding behind a wooden door at 2^nd Floor of the Building.  The police officers then intercepted the 1^st defendant and the 2^nd defendant for enquiry.

7.  Later on the same day, the 1^st defendant and the 2^nd defendant were arrested.  Under caution, the 1^st defendant stated that he went there to discuss some money lending matters, while the 2^nd defendant claimed that he went there to borrow money from his friend known as “Ah Kwong”, and he did not commit any offence.

8.  On 16 June 2020, the 3^rd defendant was arrested.  Under caution, the 3^rd defendant stated that he picked up a broom to cover a CCTV camera.

9.  The footage of the CCTV installed outside Room C, 9^th Floor of the Building (hereinafter called “Room C”)  revealed that around 4:21 am on 15 June 2020, all three defendants arrived at the Corridor, and the 2^nd defendant held a plastic bag, and walked towards the direction of Room B3.  About 2 minutes later, the 3^rd defendant took a broom and extended the broom to cover the CCTV camera installed outside Room C.  About 3 minutes later, the said broom shook, and failed to cover the CCTV camera for about 2 seconds.  At that moment, the 1^st defendant was holding a small object in his hands, and used the said object to tamper with the lock of the entrance door of Room C.

10.  The footage of the CCTV also revealed that at around 4:44 am on the same day, the 3^rd defendant took away the broom.  Then, all three defendants left the Corridor, and walked to the staircase.

11.  The footage of the CCTV installed outside Room B3 revealed that around 4:32 am on 15 June 2020, all three defendants wandered in the Corridor, and about 2 minutes later, the 2^nd defendant used a plastic bag to cover the CCTV camera installed outside Room B3 (with a wood plank to reach up high); and about 4:53 am on the same day, the 2^nd defendant took away the plastic bag that was used to cover the CCTV camera.

12.  In the 1^st defendant’s video-recorded interview, he admitted that he drove the other 2 defendants to the Building by his vehicle, and then three of them went up to 9/F of the Building together.

13.  He also admitted that upon arrival at 9/F of the Building, there was no person over there, and he took a piece of wire from a rubbish bin with the intent to open the doors of the premises with the wire, and steal the valuables therein.  He attempted to use the wire to open the door of Room C, but it was not successful.

14.  He further admitted that when he was attempting to open the door of Room C, the 3^rd defendant used a broom to cover the CCTV camera installed outside Room C, and he confirmed that he was the suspect captured by the relevant CCTV footage.

15.  In the 2^nd defendant’s video-recorded interview, he admitted that the 1^st defendant drove him and the 3^rd defendant from Jordan to Mong Kok by his vehicle; and he followed the other two defendants and walked up the staircase to 9/F of the Building.

16.  He also admitted that upon arrival, the 3^rd defendant stated that there were many CCTV cameras over there, and suggested to cover them.  Then, he used a plastic bag to cover the CCTV cameras installed outside Room B3, with a wood plank to reach up high.

17.  He further admitted that subsequently, he removed the plastic bag, and threw it out a window; and he confirmed that he was the suspect captured by the relevant CCTV footage.

18.  In the 3^rd defendant’s video-recorded interview, he admitted that he went to 9^th Floor of the Building together with the other two defendants, and then the 1^st defendant told him to cover a CCTV camera with a broom, and he picked up a broom, and used it to cover the CCTV camera installed outside Room C.

19.  He further admitted that three of them stayed at 9^th Floor of the Building for 5 to 10 minutes, and then they left the scene together; and he confirmed that he was the suspect captured by the relevant CCTV footage.

20.  The defendants admitted that at all material times, they did not have any right or permission to enter Room C, but they attempted to enter Room C, with the intent to steal valuables therein.

The 1^st defendant personal background and mitigation put forward

21.  In mitigation, Ms Lai submitted that the 1^st defendant is aged 41, single and that he received schooling up to F1 level.  His mother is aged 70 and his father is aged 80, and he has 1 elder brother aged 46, who is a gymnastic equipment technician.

22.  Ms Lai stated that as from 1996 to 2000, the 1^st defendant worked as a chef, and as from 2002, he worked as an air-conditioning technician.  In the past, the 1^st defendant was a drug addict.

23.  The criminal record of the 1^st defendant is admitted by Ms Lai on behalf of the 1^st defendant.  According to the criminal record, the 1^st defendant has 28 previous criminal convictions with 22 convictions involving dishonesty, and among these 22 convictions, 16 of them are similar convictions of the present offence.

24.  The 1^st defendant was sentenced on 5 July 2019 for his last similar conviction under the case number DCCC 839/2018.     

25.  Ms Lai further stated that at the time of the offence, the 1^st defendant was unemployed, and lived in a rented apartment.  On 15 June 2020, the 1^st defendant was arrested and remanded since.

26.  Ms Lai further submitted that in this case, a number of points should be noted ie there was no loss of property, there was no vandalism, the subject premises was vacant at the material time, there was no heavy instrument or equipment involved, no goods of high value was targeted, no confrontation, no damages, and an opportunistic burglary, rather than a carefully planned and organized one (paras 5 & 6 of the non-prejudicial statement of the 1^st defendant).

27.  Ms Lai also submitted that on 7 January 2021, in the mention hearing, the 1^st defendant and the 2^nd defendant pleaded guilty and the 3^rd defendant pleaded not guilty and the 3^rd defendant’s trial was fixed to be heard on 28 to 30 June 2021.

28.  It was further submitted that immediately after, the 1^st defendant indicated his willingness to become a prosecution witness in the 3^rd defendant’s trial so as to give evidence against the 3^rd defendant, the 1^st defendant gave a non-prejudicial statement on 1 March 2021, by which, the 3^rd defendant was implicated and the 1^st defendant also indicated that he would act as a prosecution witness to give evidence against the 3^rd defendant in the 3^rd defendant’s trial.  Eventually, through a letter from the 3^rd defendant’s solicitors dated 12 March 2021, the 3^rd defendant indicated he would plead guilty.  

“In Z v HKSAR (2007)  10 HKCFAR 183, the Court of Final Appeal confirmed that it is the policy of the courts to take into account in mitigation of sentence useful assistance the defendant has given to the authorities, and usually to give an appropriate reduction from the sentence he would otherwise have received. The object of the policy is to encourage useful assistance to the authorities for the prevention, detection and prosecution of crime. Such assistance is recognized whether the disclosure concerned crimes for which the defendant is being sentenced or other unconnected crimes.” “The most important factors in determining whether the assistance merits a discount usually include (1)  the nature and extent of the assistance; and (2)  the likely consequences of the defendant giving assistance, such as threats to his safety, more burdensome conditions of imprisonment, and dangers to himself and his family after release from prison.” Para 5-102 of Hong Kong Archbold 2021

In the case of HKSAR v Lo Sze Tung Stephanie CACC 190 of 2017 at paras 56, 57:-

“56. In R v Yan Im Kun Bokhary JA in giving the judgment of the Court of Appeal said in respect of an applicant who had offered to testify for the prosecution but had not done so as the co-accused all pleaded guilty:

“The present case, however, is not a normal case. By the time the judge came to sentence this applicant, there was no longer any occasion for him to give evidence for the prosecution. But there was no reason at all to suppose that he would not have fulfilled his promise if the occasion had presented itself. What is more, it would seem likely that his offer had a lot to do with the decisions of his co-accused to plead guilty. Where there is more than one accused, that each of them should have an incentive to be the first to plead guilty and offer to give evidence against the other or others is a very good thing. Whatever may be said about the rat race, the courts should give criminals every incentive to enter a race to rat, so to speak.”

57. The court reduced the applicant’s sentence from 6 years’ imprisonment to 5 years’ imprisonment. As the 6 years sentence was imposed after granting the applicant a one-third reduction for his plea of guilty the starting point must have been 9 years’ imprisonment. By reducing the sentence to 5 years’ imprisonment the Court of Appeal awarded the applicant a 44.4% discount from the sentencing starting point.”

29.  Ms Lai submitted that the 1^st defendant gave a non-prejudicial statement immediately after his guilty plea and the 1^st defendant frankly disclosed all his involvement and those of the other two defendants in the case, including the 3^rd defendant and as such led to the 3^rd defendant’s change of plea.  By the 1^st defendant’s act, the 1^st defendant might become a figure of unpopular attention and may even attract risk of personal safety in the future.  The 1^st defendant’s meaningful assistance led to the conviction of the 3^rd defendant and his assistance yields fruitful results.

30.  Ms Lai emphasized that the 1^st defendant has satisfied both quality and quantity of the assistance given.  It is submitted that a generous reward from 45% to 50% of reduction of sentence should be extended to the 1^st defendant for his assistance which he has rendered to the prosecution.

The 2^nd defendant personal background and mitigation put forward

31.  In mitigation, Mr Kelly submitted that the 2^nd defendant was 66 at the time of this offence, and he was educated up to Form 5 level.  At the time of his arrest he was unemployed and divorced and, at the time of his arrest, he resided at Yau Ma Tei.

32.  Mr Kelly admitted on behalf of the 2^nd defendant that the 2^nd defendant has accumulated 34 criminal convictions, including 11 offences for dishonesty, 6 of which are for burglary.  The 2^nd defendant was sentenced on 26 February 2019 under the case number DCCC 456/2018 for his last similar conviction.

33.  Mr Kelly pointed out that the attempted burglary occurred at around 0435 hours on 15 June 2020, and at the material time the occupant of Room B was working despite the lateness of the hour.

34.  An attempt had been made to cover a CCTV camera installed outside Room B.  This involved the use of a plastic bag.  A report was made to the police and the 2^nd defendant was subsequently located hiding behind a door on the 2^nd Floor of the Building.

35.  Mr Kelly submitted that the attempt to cover the CCTV was counterproductive as, upon the removal of the plastic bag the 2^nd defendant will immediately be identified (wearing a pair of glasses and a blue coloured T shirt)  on the CCTV system.

36.  Mr Kelly rightly pointed out that the aggravating factors of this case are the number of defendants and possibly, the time of the offence and the criminal record of the 2^nd defendant.

37.  Mr Kelly further submitted that the root cause of the 2^nd defendant’s criminality is his drug taking, and emphasized that the main mitigating factor is the timely guilty plea.

38.  It is further submitted that the actions of the defendants were amateur and lacked planning, and that an amateurish attempted burglary may attract a more lenient sentence.

39.  Mr Kelly also submitted that an attempt to pick a lock does not amount to the actions of the professional criminals.  None of these defendants were professional burglars, and that lock picking indicates lack of force.

40.  Mr Kelly suggested that these factors may be balanced against the fact that there were 3 persons and the defendant’s long criminal record.

The 3^rd defendant personal background and mitigation put forward

41.  In mitigation, Mr Chan submitted that the 3^rd defendant was born in mainland China and is now age 29.  He studies up to F2 and is single.  He was a delivery worker some months prior to the offence, earning around HK$12,000 per month.  He resided with his mother, and his father had passed away, the 3^rd defendant was the sole bread winner in the family.

42.  Mr Chan admitted on behalf of the 3^rd defendant that the 3^rd defendant has accumulated 10 criminal convictions, including 6 offences for dishonesty.

43.  Mr Chan stated that the COVID 19 situation and restrictions had caused the 3^rd defendant’s employers to lay him off in around February 2020, he was thus in dire financial situations and had therefore made this foolish mistake which he is now truly regretful for.

44.  Mr Chan stated that the 3^rd defendant admitted his previous criminal records fully realised and accepted that unless he mended his ways, his future would be very dark and negative.

45.  Mr Chan submitted that the 3^rd defendant is conscious of the lateness in his guilty plea.  His legal team wrote and informed the court and all parties back in March 2021 that he would be pleading guilty on the first day of trial.

46.  Mr Chan further submitted that according to the sentencing guideline case of Ng Van Nam, the 3^rd defendant would not be entitled to the normal 1/3 deduction because he had not pleaded guilty in January 2021 at the plea court stage.  However, it is the sincere wish of the 3^rd defendant to ask the court for leniency and mercy that a 1/3 deduction could also be afforded to him.  In any case, Mr Chan submitted that the 3^rd defendant’s decision to plead guilty have helped to save considerable time and resources.

47.  Mr Chan further submitted that this burglary attempt was clearly amateurish to say the least.  They were not equipped and the whole thing was not premeditated nor planned.  Nothing was stolen nor broken.  The 3^rd defendant was in fact residing in the same building block and it was only a momentary decision to take up this opportunistic venture.

48.  Mr Chan also submitted three letters, two from the 3^rd defendant and one from his mother.  The gist of these letters showed how remorseful the 3^rd defendant was and the one from his mother showed the 3^rd defendant’s action is having a devastating effect on her since she is not capable of earning and had been relying on the 3^rd defendant for his financial support.

49.  Mr Chan submitted that there is no sentencing guideline for this type of offence except that it is accepted that the case of SJ v Tsang Hon Yin 2004 HKCU 1497 represents the normal starting point for burglary on non-domestic premises, and that Mr Chan would wish to stress that it was not well planned nor equipped but rather amateurish and opportunistic.

Sentencing considerations

50.  According to the guideline stated by the Court of Appeal, for adult offender, if it is a burglary in a non-domestic premises, without any aggravating or mitigating factors, the proper starting point is 30 months of imprisonment (see The Queen v Wong Man [1993] 1 HKC 80 & Attorney General v Lui Kam Chi [1993] 1 HKC 215).

51.  In HKSAR v Cheng Wai Kai, unreported, CACC 338/2007,the Court of Appeal has listed out the examples of aggravating factors which include:-

(1)  the offence is carefully planned and skillfully executed involving the use of heavy instrument or equipment;

(2)  the offence is committed by two or more people;

(3)  the offence targets at substantial premises and involves substantial properties;

(4)  the offender is a professional burglar and not just an opportunist;

(5)  the offender has previous convictions, particularly previous conviction of similar nature; and

(6)  the offender commits multiple offences.

52.  In the present case, there are aggravating factors for all three defendants because the offence is committed in a joint enterprise.  I also decline to reduce the guideline starting point just because they failed to open the door of Room C and as a result they were charged attempted burglary.

53.  In respect of the 1^st defendant, apart from the fact that he had committed the offence with other defendants, he is a repeated offender, he had 16 similar convictions, and the starting point of the sentence of his last similar conviction had already been enhanced because of his criminal records (see DCCC 839/2018).

54.  Likewise, in respect of the 2^nd defendant, he is also a repeated offender, he had 6 similar convictions, and the starting point of the sentence of his last similar conviction had also been enhanced (see DCCC 456/2018).

55.  In fact, Mr Kelly had rightly pointed out that the aggravating factors of this case are the number of defendants and possibly, the time of the offence and the criminal record of the 2^nd defendant, which I found that these aggravating factors are also applicable to the 1^st defendant.

56.  I am also of the view that the present case is not an opportunity crime.  The culprit walked up to the 9^th Floor, knowing that the area were all covered by CCTV, had prepared to cover the CCTV by some simple and handy method.  Therefore, there was a certain degree of planning and premeditation before committing the offence.

57.  As stated above, it is obvious that the previous sentence orders had failed to deter the 1^st defendant and the 2^nd defendant.  I therefore found that a higher starting point should be adopted.

58.  Taking into account of the aggravating factors in the present case, and what had been submitted on behalf of the 1^st defendant, I consider that a starting point of 3 years and 3 months’ imprisonment is appropriate.

59.  Ms Lai had submitted that the 1^st defendant has satisfied both quality and quantity of the assistance given, and suggested that a generous reward from 45% to 50% should be extended to the 1^st defendant for the assistance which he has rendered to the prosecution.

60.  Taking into account of his timely guilty plea and the assistance given by the 1^st defendant, I shall give him a discount that is slightly higher than 45%, the sentence is therefore reduced to 21 months’ imprisonment.

61.  There being no further valid mitigating factors justifying further reduction in sentence, the 1^st defendant is sentenced to 21 months’ imprisonment.

62.  In respect of the sentence of the 2^nd defendant, after taking into account of the aggravating factors in the present case, and what had been submitted on behalf of the 2^nd defendant, I consider that a starting point of 3 years and 3 months’ imprisonment is appropriate.

63.  The only valid mitigation is his plea of guilt. Therefore, in accordance with the direction of the Court of Appeal, I would reduce the sentence of the 2^nd defendant to 26 months’ imprisonment to reflect his guilty plea.  The 2^nd defendant is sentenced to 26 months’ imprisonment after deduction.

64.  In respect of the sentence of the 3^rd defendant, after taking into account of the aggravating factors in the present case, and what had been submitted on behalf of the 3^rd defendant, I consider that a starting point of 2 years and 8 months’ imprisonment is appropriate.

65.  The only valid mitigation is his plea of guilt.  However, because of the lateness of his guilty plea, I do not find that he is entitled to the usual 1/3 discount.

66.  My view is that the 3^rd defendant pleaded guilty after the plea court stage in January 2021 and after the 1^st defendant’s indication of becoming a prosecution witness and the provision of his non prejudicial statement on 1 March 2021 to the 3^rd defendant, I therefore found that the 3^rd defendant is only entitled to ¼ discount ie 25%.

67.  Based on the aforesaid, I would reduce the sentence of the 3^rd defendant to 24 months’ imprisonment to reflect his guilty plea.  The 3^rd defendant is sentenced to 24 months’ imprisonment after deduction.