HKSAR v. LAI SUM

DCCC 110/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 110 OF 2014

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Reasons for Sentence

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1.  The defendant, Lai Sum, pleaded guilty before me to one count of burglary. The premises in question were domestic dwellings.

2.  The facts of the case are the premises which were burgled situated on the 12th floor of a building in Mongkok, and the guesthouse where the defendant was staying was on the 1st floor of the same building. On the day of offence, about 7 O’clock in the morning, defendant entered the victim’s premises, Miss Choi(the victim), who was sleeping at the time, heard some noises and saw the defendant looking through her properties in her bedroom and shouted “Thief.”  The defendant immediately fled through the main door of the premises and went downstairs.

3.  Miss Choi chased after defendant.  In the end, she got down to the 1st floor of the guesthouse where she saw the defendant enter one of the rooms there.  She reported the matter to the police.  Later, police arrived and found the defendant and one Mr Kwok inside the room into which the defendant was seen entering. 

4.  Police conducted a search in the room and recovered a wristwatch, a mobile phone with a green case holding cash of HK$1,420 from the ceiling of the toilet.  Miss Choi recognised these stolen properties as belonging to her and her boyfriend.    

5.  The defendant, aged 40, has amassed 23 previous convictions, three of which are burglaries, another three thefts.  As a result of his present conviction, he is in breach of a suspended sentence which was imposed on him on 4 June 2012 for two offences: theft and possession of drugs.  The overall sentence is one of 3 months suspended for 2 years. 

6.  Defence counsel took me through briefly the background of the defendant and submitted a letter written by the defendant’s employer.  The defence counsel urged this court to accept this case to be one of opportunistic burglary.  It was submitted that on the day in question, this defendant was staying with a friend in a guesthouse.  In the morning, the defendant’s friend, Mr. Kwok, was talking over the phone on some private matters.  Not wanting to eavesdrop on his friend’s privacy, the defendant went out to smoke.  He went up all the way to the rooftop of the building, and on the way down, he came to the 12th floor and saw the door ajar, and out of momentary greed, he entered the premises and stole the items in question. 

7.  Having heard this submission, I told the defence counsel that the court was not prepared to accept the plea of opportunistic burglary and indicated at the same time that the court was happy to hear further evidence.  Defence counsel, having taken instruction from the defendant, said that there wouldn’t be further evidence.

8.  On the facts before the court, the defendant said through his counsel he lived with his mother, and Mr Kwok, the other man found inside the same room with him at the time, defence counsel described him as an old friend of the defendant, who lived in the mainland and came over on the day in question. 

9.  First of all, I find it odd that the defendant would spend the night with him in the guesthouse since he said he lived with his mother.  And, secondly, the guesthouse was on the 1st floor.  He said he did not want to intrude into the privacy of his friend, so he wanted to go out to have a cigarette, but he told police he walked up the stairs of the building.  It is not clear how many floors are there in the building, but at least 12 floors because Madam Choi lives on the 12th floor.  I would expect him to just go one floor below to the streets to smoke instead of walking at least 12 floors to the roof.

10.  And I had the opportunity to look at the photographs of the premises in question.  There was this wooden door. According to the prosecutor, the door was closed but not locked.  The defendant said it was ajar at the time.  Looking at the date of the offence, it was in January, that’s winter time, and I would expect the occupier of premises to close the door.  To conclude, I found as a fact that that door was closed but not locked, and in other words, the defendant had tried the door to open it.  

11.  Given all this, I have no difficulty in coming to the conclusion that the defendant moved in the night before to stay in the guesthouse, and he did that with a purpose.  The purpose was to gain access to the premises in the building.  Consequently, I do not accept that this was an opportunistic burglary. There are sentencing guidelines for this type of offence, for domestic burglary without aggravating features, it is one of 3 years.

12.  Having heard the mitigation put forward by the defence counsel, I see no reason to depart from the sentencing guidelines as set down by the higher court 

13.  Now, look at his criminal record.  He has three burglaries: two in 2006, one in 1995; the theft, one in 2012, one in 2006, the other in 1994. 

14.  As far as burglaries are concerned, it is true to say he has been out of trouble for this type of offence for at least seven to eight years.  There was only one theft in 2012.  The other thefts were committed some years ago.  Given his record as it is, I am not prepared to say on this occasion that he is a repeat offender of this crime. Therefore, I take 3 years as starting point and reduce it to 2 years to reflect his plea.

15.  Now, coming to his breach of suspended sentence, after the imposition of the suspended sentence, he did commit further offence in March 2013, and on that occasion the suspended sentence was not activated. And in the present case, in January 2014, he committed yet another offence.  Defence counsel asked this court not to activate the suspended sentence because it was committed towards the end of the suspension period.

16.  But a chance has been given to him before in 2013.  He has not cherished the opportunity and recommitted further offence during the currency of the suspended sentence.  I see no reason not to activate the suspended sentence, 3 months therefore activated.  According to the law, when the court activates a suspended sentence, the term has to be made consecutive to the other term unless there are special reasons.

And I find no special reason. Therefore, I order the 3 months to run consecutively to the 2 years’ term that I have just imposed. The total term is one of 2 years and 3 months.