HKSAR v. NG KAI MAN AND ANOTHER

DCCC 258/2023

[2023] HKDC 1764

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 258 OF 2023

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REASONS FOR SENTENCE

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1.  The defendants have entered pleas of guilty to the four charges on this amended indictment.  The 1^st charge is a charge of theft against the 2^nd accused only.  The 2^nd charge being one of theft against both accused.  The 3^rd charge being one of burglary against the 1^st accused and the 4^th charge being a charge of handling stolen goods against the 2^nd accused only.

2.  The amended summaries of facts have been agreed and I have convicted where I would enter convictions against the defendants on the respective charges which they pleaded guilty and admitted the facts to.

3.  As far as the facts relevant for sentencing are concerned, on the 1^st charge, a charge of theft against the 2^nd defendant, it was committed at the premises known as Helping Hands, which is an elderly centre in Tseung Kwan O.  The floors of that centre can be accessed via lifts and staircases and are open to the public 24 hours a day.

4.  On each floor of the centre there is a box, or charity box, or donation box which is padlocked and in this case we are concerned with the boxes that were on the second and third floor of the premises.

5.  On 3 November 2022, it was found that the boxes on the second and third floors had had their money removed, that is a total of $300.  The boxes were padlocked.  They had also been removed as well.  CCTV footage of the boxes was recovered and appeared to show, as agreed in the facts, that both defendants had entered the premises on 2 November and during the course of the 1^st defendant’s time in the premises she had been seen to go to the boxes and appeared to prise them open and left by the rear staircase. The 2^nd defendant accepts that she had prised open the boxes using a plier and taken the contents, the money inside them and the padlocks.

6.  As far as the 2^nd charge is concerned, that’s the charge of theft against both the 1^st and 2^nd defendant, I note that was originally charges of burglary, but following an investigation it was found that that was not a sustainable charge.  The most recent version of the facts which is accepted by the 1^st and 2^nd defendant, is that the premises where the theft occurred is known as No. 309 Tseung Kwan O Village.  It is in fact a house under construction but the defendant himself, the 1^st defendant is the registered owner of Lot No. 812 on which No. 309 Tseung Kwan O Village is being constructed.

7.  The responsibility of the construction of the house is by PW2 and on completion of construction of that house by PW2, D1 would become the legal owner of the ground floor of the house and PW2 the legal owner of the first, second floor and roof of the house.  At the time of the theft, the house was fenced with four walls and metal plates and had one entrance and what in fact occurred was both the 1^st and 2^nd defendants entered the premises on the ground floor and took from within there some $11,500-worth of renovation tools which were owned by the 2^nd prosecution witness including hydraulic drills, meters and copper wire.  Both the defendants later went on to admit that they had committed that theft at that location.

8.  The 3^rd charge to which the 1^st defendant has entered a plea of guilty involved the premises at Room 2201, Po Tai House in Po Lam Estate, Po Lam. That has been under renovation, that flat.  The Room 2201 has a lock.

9.  On the evening of 31 October 2022, PW3 and a co-worker placed the renovation tools inside that room near the main gate.  They said that they had locked the premises and put the key in a locked box.  On 4 November, PW3 returned to the room and found the locked box was missing and the main gate of the room was broken and placed on the ground, so there was no sign of prising was in fact found on the main gate of Room 2201.

10.  After examination, some $9,800-worth of tools was found to be missing including copper wire again valued at $1,200 and two green Makita hydraulic drills valued at $2,800 each, total value $5,600.

11.  When the police found both the 1^st and 2^nd defendant in the corridor on 3 November nearby to the premises of the 29^th floor, they were sitting together and organising various items on a trolley and on that trolley was found the drills that had been stolen from the burglary in Charge 3 in Room 2201, together with coils of copper wire and other items.  The 2^nd defendant has entered a plea of guilty in respect of handling those particular items in Charge 4, in particular those items being two electric drills which were the property of PW3.

12.  So those are the basic facts upon which the defendant have entered their pleas of guilty.

13.  As far as the antecedents of the defendants are concerned, 1^st defendant on his antecedents is recorded as being 43 years of age, educated to primary school level and works as a renovation worker, his last discharge from prison being on 21 January 2023.  The 1^st defendant’s criminal record shows that he has been convicted for drug offences in the past and theft offences in 2022. That would be similar to the 2^nd charge.  He has no previous convictions of burglary however.

14.  As far as the 2^nd defendant is concerned, she was originally born in the Philippines.  She has a Bachelor’s Degree in Nursing Education from the Philippines.  She is an educated lady. She has been employed in Hong Kong as a domestic helper since 2015 but found herself unemployed in 2020.  She has in fact made a claim for asylum and is present in Hong Kong on what is described as a Form 8 and both the 1^st and 2^nd defendants agree that they are in a relationship and the 1^st defendant is her boyfriend and she was living with him and his family in Tseung Kwan O village.  She has one previous conviction for theft, shoplifting, recorded in 2022.

15.  As far as the mitigation is concerned, the 1^st defendant prays in aid his plea of guilty and the indication of a plea of guilty at all stages which would entitle him to a discount of one-third.  He also in the Summary of Facts said that in respect of the burglary as far as he was aware, the premises were entered without any prising or damage to the premises inflicted by him.  He claimed in his video-recorded interview that the door of 2201 was not closed properly and there was no lock.  As far as the theft is concerned, the defendant would say all the items were on his own property, that he took them in an opportunistic way.

16.  As far as the 2^nd defendant is concerned, she of course is a Form 8 holder and is not allowed to work in Hong Kong so she would have found herself very much dependant on the 1^st defendant and counsel for her points out that she appears to be in the company of the 1^st defendant when she is committing these offences, the two theft offences and the handling stolen goods offence. So one cannot discount the fact that she was accompanying him out of some sense of obligation arising from their relationship and her dependence upon him.

17.  I take these matters into consideration.  I do take their pleas of guilty into consideration and I shall deduct any head sentence by one-third to reflect that.

18.  There is one aggravating factor in respect of the 2^nd defendant that I must consider and that is that she is a Form 8 holder and there is clear authority to the proposition that that is a factor that does aggravate sentence.

19.  I know that both defendants have previous offences of theft in their records, however at this stage I do not consider them to necessarily be an aggravating factor in the commission of these offences.

20.  I shall sentence as there are, I will note at this stage, in respect of both theft and handling stolen goods there are no tariff sentences that I need to consider or guideline sentences.  However the handling stolen goods offence of course is related to the burglary in Charge 3 and that makes it a more serious offence than it would otherwise be.

21.  As far as the burglary in Charge 3 is concerned, that is the domestic premises burglary, the starting point for sentence for a person of clear record who has pleaded not guilty in a domestic premises burglary be one of 36 months’ imprisonment.

22.  I do consider in respect of Charge 3 that the premises themselves were under renovation, were not occupied.  One of the rationales behind the higher sentencing for domestic premises burglary is the possibility that the premises could be occupied and that could lead to more serious offences being committed if the premises are occupied and it would appear in this case that the defendant was aware that the premises were under renovation.  I consider that to be a mitigating factor in respect of the burglary in Charge 3 and I will take it into account when determining the initial starting point for sentence.

23.  I will deal with the offences as follows.  On Charge 1, the 2^nd defendant indicated pleaded guilty.  I will take a starting point for sentence on that charge of 6 months’ imprisonment.  I will enhance that by 3 months to take into account the fact that she is a Form 8 holder.  From that 9 months’ imprisonment I will deduct one-third of that sentence leading to a final sentence of 6 months’ imprisonment.

24.  On the 2^nd charge, the 1^st defendant has again pleaded guilty.  I will give him a full one-third deduction.  I will take a starting point for sentence of 6 months’ imprisonment on the 2^nd charge.  So the 1^st defendant’s sentence on the 2^nd charge be one of 4 months’ imprisonment.

25.  The 2^nd defendant with a starting point of 6 months enhanced by 3 months to reflect her Form 8 status, would be a starting point then of 9 months’ imprisonment reduced to 6 months’ imprisonment for her plea of guilty.

26.  On the 3^rd charge, I take into account the factual matrix of that domestic premises burglary.  I shall take a starting pointing of 33 months’ imprisonment on that charge and reduce that to 22 months’ imprisonment for the defendant’s plea of guilty.

27.  On the 4^th charge which the 2^nd defendant faces alone, I will take a starting point, having regard to the fact this is related to a known burglary, I will take a starting point of 18 months’ imprisonment, enhance that by 3 months to reflect the 2^nd defendant’s Form 8 status, to a starting point of 21 months’ imprisonment reduced to 14 months’ imprisonment in regard to the 2^nd defendant’s plea of guilty.

28.  I must now consider the overall totality of sentence in respect of both defendants.  Both defendants face multiple charges.  I must consider and find in this case the correct overall totality for sentence.

29.  As far as the 1^st defendant is concerned, having regard to the two charges he faces, I think I consider that an overall total sentence of 24 months’ imprisonment is the appropriate sentence.  I shall achieve that by ordering that 2 months of the sentence in Charge 2 be served consecutively to that in Charge 3, giving an overall total of 24 months’ imprisonment for the 1^st defendant.

30.  For the 2^nd defendant, the final sentence be one of 18 months’ imprisonment achieved by ordering that charges 1 and 2 are served concurrently to each other but 4 months consecutively as to charge 4.