HKSAR v. LEE NICHOLAS

DCCC771/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 771 OF 2011

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty this morning before me on two burglary charges, contrary to section 11(1)(b) and (4) of the Theft Ordinance. Those are non-domestic burglary cases, which took place, firstly, on 13 March this year, and later on 13 June this year.

2.  The 1st charge was in relation to a building known as Touch Up Production Limited, which is situated in Kowloon Tong.  According to the facts, you stole therein cash of ¥5,000 Renminbi.  In the 2nd charge, the subject premises was a property agent limited situated in Prince Edward Road West.  You attempted to steal therein but you were caught red-handed.

The Facts

3.  The facts of the two cases were rather simple. As said, you were caught red-handed during the 2nd offence.  What happened was that at about 3.20 am on 13 June 2011, a civilian observed from his home and spotted you acting furtively at the rear lane of a branch office of Centaline Property Agency Limited.  You were seen kicking open the window, and then later returning to the same alley and climb into the premises through the window.  Upon seeing this, the civilian witness made a report to the police.

4.  Later, the police arrived and you were found inside the premises.  Inside your shoulder bag a screwdriver and a torch were found and there were also marks of the window being prised opened.  You frankly admitted upon enquiry and under caution that you were being caught red-handed and you intended to climb into the property agent’s office in order to look for valuables as a result.

5.  After you were arrested you were further cautioned of the 1st charge, an offence which took place about three months ago on 17 March in Kowloon Tong, where a production limited was burgled.  That was also a burglary at commercial premises and you had been shown a CCTV footage, which you frankly admitted that you were the one as shown in the CCTV footage and you also said that you took away a pile of Renminbi cash and you spent all the money there and you said you entered the premises through an unsecured rear door.

6.  Upon checking, the staff of the production limited confirmed that cash of Renminbi ¥5,000 was missing during the burglary.

7.  You were aged 48 and you are married.   In the past you had a total of 40 criminal convictions since 1992, out of which 21 were similar records of burglary convictions.

8.  Of significance was that your last burglary conviction was in 2006 and you were sentenced to a total of 32 months’ imprisonment in District Court for six charges of burglary.

9.  According to the antecedent statement, you were discharged from the prison since 2007 and Mr Pang, your lawyer informed me that since release from the prison you have been working steadily as a warehouse supervisor, earning an income of $13,000.

10.  I was then further told in the mitigation as to why, despite your path to reform, you still committed the two present offences. What happened was that out of your previous marriage the custody of the nine year old son was granted to the ex-wife. In the beginning of this year you were told by your ex-wife.  that she was planning to leave Hong Kong for good, and she demanded a sum of $100,000 from you in order that the custody of the son be returned to you.

11.  Since you needed the money urgently, foolishly you committed the two present offences.

12.  Your letter and Mr Pang had informed me already that, as a result, the custody of the son has now been granted to you and also with the assistance of the help from your age-old father now living in the United States, your son is now taken care by the grandfather in the United States.

13.  Apart from your own letter, I also had the opportunity to take a look at the letter which was written by the employer who, despite your criminal past and the present convictions, had informed the court that they were still offering you the post of a warehouse supervisor upon your release from the prison.  Your present wife also asked the court to be lenient and to take into account the fact that you just committed the foolish mistake in order to take care of the son and asked me to be as lenient as possible.

14.  Burglary is of course a very serious offence. It is much more serious in this case because of the fact that you are a persistent offender.  Looking at your criminal record, it is not exaggerated to describe that you are a professional burglar.  I can see that from your last release from prison, you have managed to stay away from the trouble of the law for a number of years, and this can be supported by the letter from your employer that you have been working steadily and working hard and earned their trust and worked yourself from a warehouse clerk to a warehouse supervisor.

15.  Unfortunately, on your part, your ex-wife was demanding the $100,000 from you for the return of the custody of the son. Obviously you had not considered the consequences of your decision to commit the offences of burglary once again after so many years.

16.  The tariff for commercial or non-domestic burglary is said to be 2½ years.  In sentencing, I took into account of your appalling poor records and the fact that you are a persistent offender.  I consider that as far as the starting point is concerned, in each charge, the usual 2½ year starting point should be increased by six months.  Therefore, it is a 3 year starting point for both Charge 1 and Charge 2. 

17.  Because of your plea of guilty, which is the most effective mitigation in this case, you will be entitled to a customary one-third discount.  Therefore, in relation to Charge 1, the sentence shall be reduced to 24 months.  In relation to Charge 2, furthermore, after I have made enquiry with the prosecution, they confirmed that all they have against you in relation to this charge is a CCTV footage image which allegedly captured yourself but the prosecution had properly, and correctly in my view, accepted that it is  not a sufficiently clear image to secure a conviction.  Since you have voluntarily confessed to a crime with insufficient evidence, this is something which I should give credit and to reduce the sentence further by four months to encourage your decision to come clean on this matter.

18.  In the end, for this charge, you will be given a sentence of 20 months’ imprisonment.

19.  In relation to Charge 2, of course, you were caught red-handed.  The starting point is already fixed at 36 months.  The only mitigating factor in this case is the plea of guilty, which merits a one-third discount, and therefore the sentence in this charge will be reduced from 36 months to 24 months. 

20.  Of course I have considered your mitigation and the reason why you committed the present two offences.  The economic pressures upon yourself to commit these two crimes is of course enormous, especially it is because you very much wanted the son to return to you but the court can never accept economic reasons for committing crimes and you should know better because you have been convicted and sentenced in the District Court for as long as 32 months’ imprisonment in the past for burglary charges.  The court has said in so many times that family circumstances virtually play no part at all when it comes to sentence in serious offences such as the present. 

21.  Despite my personal sympathy of your situation or position, I decided that I cannot reduce the sentence on account of your reasons to commit these two offences. 

22.  These are two separated burglaries committed at two different premises at two different occasions.  The authority dictates that this should be in principle a wholly consecutive sentence, subject of course to the principle of totality.  I finally decided that out of the 24 months’ imprisonment, an additional 16 months should be served in relation to this charge on top of the Charge 1.  My order is that 16 months’ imprisonment in relation to Charge 2 to serve consecutively to Charge 1, with the remainder to serve concurrently.

23.  The total sentences of these two charges, therefore is one of 36 months’ imprisonment.