HKSAR v. LI YIP KIN KEN

DCCC 1288/2024

[2025] HKDC 1371

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1288 OF 2024

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REASONS FOR SENTENCE

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1.  Mr Li pleaded guilty before me to three charges on a Charge Sheet as follows.

2.  Charge 1 is Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.  Particulars are that he, on 18 May 2024, in Hong Kong, having entered as a trespasser part of a building known as the shroff office, Carpark, Un Chau Estate, Cheung Sha Wan, Kowloon, attempted to steal therein.

3.  Charge 2 is Possession of a poison included in Part 1 of the Poisons List, contrary to sections 23(1), 33(1)  and 34 of the Pharmacy and Poisons Ordinance, Cap 138.  Particulars are that he, on the same date, at the junction of Un Chau Street and Cheung Fat Street, Cheung Sha Wan, Kowloon, in Hong Kong, had in his possession a poison included in Part 1 of the Poisons List, namely 0.15 gramme of a solid containing zolpidem, otherwise than in accordance with the provisions of the Pharmacy and Poisons Ordinance, Chapter 138.

4.  Charge 3 is Possession of a dangerous drug, contrary to section 8(1)(a)  and (2)  of the Dangerous Drugs Ordinance, Cap 134.  Particulars are that he, on the same date, at the same place as in Charge 2, in Hong Kong, had in his possession a dangerous drug, namely 0.05 gramme of a solid containing midazolam.

Facts admitted by Mr Li

5.  PW1 was employed as a security guard stationed at the Carpark at Un Chau Street Estate. 

6.  There was a Shroff Office located at the entrance of the Carpark.  The Shroff Office was equipped with a transparent glass panel (“the Glass Panel”).  A payment slot (“the Payment Slot”), designed to allow users of the Carpark to deposit items for collection by the Shroff Office staff, was situated beneath the Glass Panel.

7.  On 18 May 2024, at about 1:30 pm, PW1 left her mobile phone (“the Mobile Phone”)  on the desk near the Glass Panel.  PW1 locked the door of the Shroff Office before leaving.  At the material time, a plastic board (“the Plastic Board”)  was placed against the Glass Panel.

8.  At about 1:45 pm, Mr Li was acting furtively outside the Shroff Office. He even inserted an unknown object into the door lock of the Shroff Office with intent to open it.  Somebody nearby witnessed these activities.

9.  At about the same time, CCTV captured the images of Mr Li reaching his hand into the Payment Slot and moving the Plastic Board aside.

10.  Case was reported to the police.

11.  After some unsuccessful attempts to open the door of the Shroff Office, Mr Li left but returned later.  This time, Mr Li had with him a retractable measuring tape with about 20 cm of tape pulled out.

12.  CCTV captured images of Mr Li reaching the measuring tape into the Payment Slot with intent to move the Mobile Phone towards himself; that after several unsuccessful attempts, he left.

13.  Soon, police arrived at scene and together with the eyewitness walked around the vicinity of Un Chau Street and eventually spotted and intercepted Mr Li.  That time, Mr Li was holding a measuring tape.  Mr Li was arrested for attempted burglary.

14.  Upon body search at the junction of Un Chau Street and Cheung Fat Street, police found in the left front pocket of Mr Li’s trousers:

(a)  Two white tablets containing a total of 0.15 gramme of a solid containing zolpidem (E1), a listed Part 1 Poison; and

(b)  One blue tablet containing 0.05 gramme of a solid containing midazolam (E2), a dangerous drug.

15.  Mr Li was not in possession of any medical prescription for E1 or E2.

16.  Mr Li was further arrested for possession of Part 1 Poison.

Criminal record

17.  Mr Li has 36 previous convictions of which 9 were for burglary, 14 were for theft or attempted theft, 2 were for obtaining property by deception, 3 were for possession of Part 1 Poison, 5 were for possession of dangerous drug, and 2 were for possession of equipment fit and intended for using dangerous drug.

Antecedents

18.  Mr Li is aged almost 46 (44 at the time of the offences), educated to F7 level, was unemployed at the time of arrest but had previously been a decoration worker with monthly income of around $20,000.  He was last discharged from prison on 21 September 2024 ie post the present offences.  Mr Li was living with his girlfriend in private housing in Sham Shui Po.

Mitigation

19.  Mr Stephen Fong of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Li.  The following is a summary of the mitigation submissions.

20.  At the time of the offences, Mr Li was living with his girlfriend.  Mr Li survived his elder brother.

21.  Mr Li’s father (80)  is living at the Old People’s Home.  Mr Li’s mother (76)  is a housewife and is living with her widowed daughter-in-law and the latter’s daughter.

22.  Mr Li has worked as decoration worker responsible for installing CCTV, the internet and electricity wirings.  The daily wage was around $1,200 with average income around $20,000 per month.

23.  However, since release from prison in October 2023, Mr Li has been unable to find any job and he returned to abusing dangerous drug again.  He committed the present offence because of his financial difficulty and his personal drug problem.

24.  The standard sentence after trial for burglary of non-domestic premises is 2.5 years’ imprisonment: HKSAR v Khan Asif [2010] 1 HKLRD 404, CACC 83/2009, at para 31.

25.  The Court of Appeal in HKSAR v Sim Ka Wing, CACC  450/2000, held that:

“… the conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find.” (see p5 lines 8 to 10)

26.  The Court of Appeal thereafter in HKSAR v Cheung To Ming [2006] 2 HKLRD 259, CACC 406/2005, and HKSAR v Law Tin Yam, CACC 258/2010, adopted the legal principle on sentence of the opportunistic burglar akin to the sneak thief in Sim Ka Wing.

27.  In HKSAR v Cheng Wai Kai, CACC 338/2007, the Court of Appeal held that:

“15. The starting point can be adjusted upwards if there are aggravating circumstances such as; (1)  the offence is carefully planned and skilfully 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.”

28.  Mr Li pleaded guilty to the charges.

29.  The burglary did not involve any loss of property.  It was impossible for Mr Li to gain access into the premises through the glass panel of the Shroff Office.  Mr Li himself actually had not gained access into the premises. The premises had not been ransacked.  What Mr Li was doing at the time of the offence was akin to a sneak thief trying to use the measuring tape to gain access into the premises to steal the mobile phone placed on the table inside the Shroff Office.  Mr Li at most had only technically committed the burglary offence.  The usual non-domestic [burglary] starting point of 2.5 years is not applicable.  In view of the nature of the offence was more akin to the sneak thief, the court should use a much more lenient starting point on sentence in the present case.

30.  The quantity of the Part 1 Poison [solid] was 0.15 gramme and that of the dangerous drug midazolam [solid] was 0.05 gramme.  The total quantity was trivial and would not have any latent risk.

31.  The only aggravating factor in the case is that Mr Li has similar previous criminal records of burglary and dangerous drugs.  For the reasons mentioned, the court should use a starting point of sentence lower than the usual 2.5 years for burglary of non-domestic premises.  Having consider Mr Li’s similar criminal records, the court could adjust upward the sentence and then give 1/3 discount for the guilty plea.

32.  In view of the sentence for Charge 1 would probably be more than 9 months’ imprisonment, under section 54A(1A)(b)  of the Dangerous Drugs Ordinance, Cap 134, it is not necessary to obtain DATC report before sentence on the charge of possession of a dangerous drug under Charge 3.

33.  Mr Fong reminded the court of the totality principle and urged the court to order the sentences of Charges 2 and 3 to run concurrently with that of Charge 1.

34.  Mr Fong acknowledged that commission of the present offences whilst on court bail is an aggravating factor.

Sentence

35.  Prosecution supplied to the court a photo album (since returned)  of photographs which helped to explain the layout of the Shroff Office.

36.  Prosecution informed the court that Mr Li committed the present offences whilst on court bail for his last case on the criminal record summary (a case of Loitering).

37.  For Charge 1, I agree that the strict 2½ years’ starting point for burglary of non-domestic premises should not be applied in the circumstances of this case.  Instead, I adopt a starting point of 2 years’ imprisonment.  Mr Li has a dreadful criminal record of burglary and Theft Ordinance offences.  For this reason and the other aggravating factor of commission of the offence whilst on court bail, the starting point is raised to 2½ years’ imprisonment.

38.  For Charges 2 and 3, the amount of Part 1 Poison and dangerous drug are both trivial.

39.  For Charge 2, bearing in mind Mr Li is a repeated offender, I adopt a starting point of 3 months’ imprisonment.

40.  For Charge 3, because of the small quantity of the dangerous drug involved, latent risk of further dissemination can be ignored.  However, the fact that Mr Li is a repeated offender of dangerous drug related offences cannot be ignored.  Bearing that aggravating factor in mind, I adopt a starting point of 3 months’ imprisonment.

41.  The aggravating factor of commission of the offences subject of Charges 2 and 3 whilst on court bail will be ignored so to avoid falling into the danger of double/triple counting.

42.  Mr Li pleaded guilty to the charges in good time entitling him to the customary 1/3 sentencing discount.  Other than that, I cannot see any mitigating factor of weight to justify another sentence reduction.

43.  Although the offences took place at about the same place and at about the same time, they were separate and distinct offences.  One was not concomitant to the others.  In principle, they ought to attract consecutive sentences.  However, I will bear in mind totality when determining the final aggregate sentence for Mr Li.

(Mr Li, please stand)

44.  For Charge 1, the sentence is 20 months’ imprisonment.

45.  For Charge 2, the sentence is 2 months’ imprisonment.

46.  For Charge 3, the sentence is 2 months’ imprisonment.

47.  I order that 1½ months of the sentence on Charge 2, and 1½ months of the sentence on Charge 3, are each to run consecutively to the sentence on Charge 1, making an aggregate sentence of 23 months’ imprisonment for Mr Li.