HKSAR v. SO HO LUN (also known as MA YU LUNG)

DCCC 246/2021

[2021] HKDC 1000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 246 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of burglary with intent to steal, contrary to section 11 of the Theft Ordinance[1].

2.  Full particulars of the offence are set out in the summary of facts admitted by the defendant today. 

3.  In summary “Dream Academy” is a salon situated on the G/F and 1/F of No. 149 Kwong Fuk Road.  The operating hours of the salon were between 10:30 a.m. and 8 p.m.

4.  The salon had two entrances, one of which was a back door on the ground floor.  Outside the back door was the common area of the building, which was used by the salon as a storage area. 

5.  The common area was secured by two roller shutters.  Photographs of the common area have been submitted to court.   CCTV cameras were installed in the common area and outside the building.

6.  At around 8:00 p.m. on 23 November 2020 the owner of the salon left after locking all the doors.  The owner however only closed one of the roller shutters.  

7.  At about 11:30 a.m. on 28 November 2020 the owner discovered that the CCTV camera installed in the common area had been sprayed with black paint.  A report was then made to the police. 

8.  The CCTV footage of the common area captured the defendant entering the common area at about 10:40 p.m. on 23 November 2020.  After entering the common area, the defendant is seen holding a can of spray paint towards the CCTV camera.  A few seconds later the lens of the CCTV camera was covered by paint. 

9.  CCTV footage from outside the building captured the defendant entering the common area and leaving about ten seconds later carrying only a can of spray paint. 

10.  The defendant was arrested on 28 November 2020.  Under caution and in a video recorded interview the defendant admitted, inter alia, that out of momentary greed on seeing the roller shutter open he entered the common area to see if there was anything to steal; he used spray paint to cover the CCTV camera so he would not be identified and left on finding nothing to steal. 

Mitigation

11.  In passing sentence, I have carefully considered the oral and written submission of Miss Wu, including that the defendant, who is 41, a seafood merchandiser, is divorced with a daughter aged 16 and a son aged 14 who live with their mother[2]. 

12.  I take into account the defendant regularly contributes to the maintenance of his wife and children and that whilst in custody he has recently learnt his son has been diagnosed with Hemophilia for which he needs a bone marrow transplant.  The defendant wishes to be released early so he can undergo the test for donation of the bone marrow to his son[3].

13.  Although the defendant has a criminal record including convictions for theft in 2014, I take into account he has no previous convictions for burglary. 

Starting point

14.  The correct starting point for a single burglary of commercial premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months’ imprisonment.

15.  Miss Wu says the defendant committed the offence out of momentary greed when he was on his way home and noticed that the roller gate was open.  The defendant picked up an old can of spray paint discarded by a nearby bicycle shop and entered the common area to see if there was anything to steal[4]. 

16.  Miss Wu submits a lower starting point is appropriate the burglary being opportunistic and not involving the entering of any premises in the building.  In support Miss Wu refers the court to the well- known cases of HKSAR v Sim Ka Wing, HKSAR v Law Tin Yam, HKSAR v Cheung To Ming and HKSAR v Chau Man Ying[5].

17.  Save for the case of HKSAR v Sim Ka Wing, which is clearly more serious, the other cases relied on by Miss Wu are in my view less serious not least by reason of the fact the defendant in the present case used a can of spray paint to cover the CCTV camera so as to prevent his identification. 

18.  Taking into account the defendant only entered the common area and did not enter any premises in the building and did not steal anything, I am satisfied a starting point of 21 months’ imprisonment is appropriate.  Giving the defendant full credit for his plea of guilty reduces the sentence to 14 months’ imprisonment.

19.  The defendant agrees to pay $200 being the repair costs of the CCTV camera[6].  In recognition I further reduce the sentence by 1 month to 13 months’ imprisonment. 

20.  The defendant is convicted and sentenced to 13 months’ imprisonment and ordered to pay $200 compensation to Chen Hsuan Yi, Phoebe, the defendant consenting to payment being made from his prisoner’s property pursuant to section 73 of the Criminal Procedure Ordinance[7] .