HKSAR v. DAO NGOC-LOI

DCCC 598/2021

[2022] HKDC 593

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 598 OF 2021

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REASONS FOR SENTENCE

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Charges

1.  The Defendant pleads guilty to a charge of burglary. 

Facts

Background

2.  At all material times, the building under construction (the “Building”)  situated at the construction site of Nos. 270-286 Tung Chau Street, Sham Shui Po, Kowloon (the “Site”)  had three storeys with staircases inside and a fourth storey under construction.  The Building was surrounded by steel hoarding.  The entrance for workers was secured with a lock and guarded by security.  The entrance for vehicles was secured with a lock and chain.  The Site was scheduled to undergo construction from October 2020 to November 2022.

3.  PW1 was a renovation worker hired by Hong Kong Oceaneering Limited.  His working hours were 8 a.m. to 5:30 p.m. on weekdays. 

Burglary

4.  At around 4:00 p.m. on 6 April 2021, PW1 placed his working tools in a locked room on the G/F of the Building and left.  At around 7:50 a.m. on 7 April 2021, PW1 found the room ransacked and the following tools, worth HK$4,500 in total, missing:  1 hand grinder, 1 hand electric drill, 1 hand-held percussive breaker, and 3 rolls of electrical wires.  The lock to the room remained intact but the room had several wall openings. 

CCTV Evidence

5.  CCTV at the Site captured the Defendant appearing in a corridor on the outer perimeter of the Site with an unknown male at around 12:24 a.m. on 7 April 2021.  The pair climbed up the bars which were leaning against the hoarding and disappeared from the CCTV at around 12:25 a.m.  A photograph revealed that the hoarding at the corresponding location had a gap allowing physical entry to the 1/F of the Building.

6.  At around 2:21 a.m., the CCTV captured the Defendant reappearing in the corridor.  During the next 10 minutes, the Defendant caught a folding cart that was being lowered from height and loaded thereon several heavy-looking bags that were being lowered from height one after another.  At around 2:32 a.m., the Defendant was rejoined by his companion who helped him secure the cart with cords.  The pair left the corridor with the bag-filled cart at around 2:36 a.m.

7.  CCTVs in the vicinity captured the Defendant and his companion taking turns to push the bag-filled cart.  They made their way to the back alley of No. 31-33 Shek Kip Mei Street at around 2:49 a.m. 

Search & Arrest

8.  Police investigation revealed that there was a staircase at No. 33 Shek Kip Mei Street.   The police inspected the staircase on 10 April 2021 and found a pair of camouflage pants suspected to be worn by the Defendant during the offence as captured on CCTV.  It was hanging on the strip of staircase between the ground floor and the first floor. 

9.  On 11 April 2021, the police returned to No. 33 Shek Kip Mei Street and found the Defendant sleeping on the strip of staircase between the ground floor and first floor.  At the material time, the Defendant was wearing a short-sleeved black t-shirt believed to have been worn by him during the offence as captured by CCTV.  The T-shirt had a red logo on the left chest and a white line encircling the neckline.

10.  Next to the Defendant were a black cap, a pair of camouflage pants, a pair of black shoes, a gray mask, and a black shoulder bag, all believed to be worn or used by him during the offence as seen on CCTV. 

11.  A folding cart believed to have been used by the Defendant during the offence was also found next to him.  The cart still had traces of gravel.

12.  Upon enquiry, the Defendant admitted that everything there belonged to him, including the articles of clothing mentioned above.

13.  The Defendant was then arrested for “Burglary” and cautioned. 

Video-Recorded Interview

14.  A video-recorded interview was conducted with the Defendant in the presence of a Vietnamese interpreter on 11 April 2021 during which, he admitted to recognizing the unknown male to be an “Ah Wah” who he had met playing video games. 

Investigation

15.  On 11 April 2021, the police further searched the staircase where the Defendant was arrested and found a red recycling bag, a pair of grey gloves, and 2 rolls of blue cables all believed to be used by the Defendant as seen on CCTV.

Offence

16.  At the material times, the Defendant, together with another person unknown having entered the Building as a trespasser, stole 1 hand grinder, 1 hand electric drill, 1 hand-held percussive breaker, and 3 rolls of electrical wires.

Mitigation

17.  The Defendant is 59 years of age.  He was born in Vietnam and settled in Hong Kong in 2000.  He has no family or relative in Hong Kong.  He was a construction site casual worker before arrest.  He had 40 court cases resulting in a large number of criminal records, including burglary and theft.  However, his last records for theft and burglary were a sentence of 12 months imposed in 2006 and of 22 months imposed in 2007 respectively (Items 26 and 27 of the Criminal Record Summary – Part A).  Afterwards, he had no record for any dishonesty offence, either.  I do not regard him a persistent burglar or thief to warrant an increase in his sentence today.

18.  The proper starting point for non-domestic premises shall be 2 years 6 months’ imprisonment for a first offender of full age in the absence of aggravating factors (R v Wong Man [1993] 1 HKC 80). 

19.  His counsel Mr. Lo acknowledges that the accomplice and the use of a folding cart are two aggravating factors (HKSAR v CHENG Wai Kai CACC 338/2007). 

Sentencing this Defendant

20.  The Defendant had first scouted out the premises and returned two hours later with an accomplice and a folding cart.  There was no forcible entry but it was a planned burglary, not opportunistic.  I take a starting point of 3 years to reflect the two aggravating factors as acknowledged by his counsel. One-third off for the plea of guilty, the sentence is 2 years.