HKSAR v. LO CHUN HO WESLEY AND ANOTHER

DCCC 471/2022

[2023] HKDC 628

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 471 OF 2022

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REASONS FOR SENTENCE

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The Pleas

1.  There are two defendants with 4 charges in the present case.  Both D1 and 2 pleaded guilty to their respective charges: -

Charge 1	D2	Using an ID card relating to PW3 on 4/2/2022
Charge 2	D2	Using an ID card relating to PW3 on 6/2/2022
Charge 3	D1 and D2	Burglary on 6/2/2022
Charge 4	D2	Possession of an ID card belong to PW3 on 7/2/2022

2.  C+ Laundry is a 24-hour self-service laundry shop (“the Shop”)  situated in Castle Peak Road, Kwai Chung. 

3.  At about noon on 6 February 2022, PW1 received a call from the cleaner and was told that the door of the store room (the Room)  had been prized open and the Vending Machine had been opened by others, approximately $300 cash went missing.

4.  PW1 also confirmed that 2 keys to the Vending Machine were also missing.

5.  The CCTV footage captured that at around 2:25 am on 6 February 2022, the 1^st Defendant went into the Shop and damaged the lock of the Room.  The 1^st Defendant then took away two keys and $300 while the 2^nd Defendant stood outside the Shop as a lookout.  Case was reported.

The Arrest

6.  At about 1:29 pm on 7 February 2022, the 2^nd Defendant was intercepted by the police near the Cozi Hotel which was also located in Castle Peak Road, Kwai Chung.  Upon body search, the following items were found: -

7.  

(a)  one HKID card in the name of TANG Chung-leung (“PW3”); and

(b)  2 keys of belonging to the laundry shop.

8.  The 2^nd Defendant was arrested for the offence of “burglary” and “possession of identity card relating to another person”. 

9.  The 2^nd Defendant suggested the Police to locate the 1^st Defendant at Room 1006 of Shek Hei House, Shek Lei Estate, (“Room 1006”).

10.  Upon enquiry, it was found that the 2^nd Defendant used PW3’s HKID card to register a hotel room under PW3’s name at the Hotel on 4, 6 and 7 February 2022 respectively.

11.  Subsequently, the 1^st Defendant was arrested for “burglary” in Room 1006.  Under caution, the 1^st Defendant admitted to have prized open the door of the Room and stole the keys and $300 from a metal box.  

Cautioned video-recorded interview

12.  The 2^nd Defendant admitted inter alia the following:

(a)  that he picked up PW3’s HKID card on 4 February 2022 near Ying Kwai House.

(b)  He did not know PW3.

(c)  He had used PW3’s HKID card for 2 to 3 times for renting a hotel room at the Hotel (i.e. on 4, 5 and 6 February 2022).

Criminal record

(a)  D1 has 15 court appearances with 25 convictions, he had one previous record of burglary in 2019 and 8 occasions related to dishonesty offences.

(b)  His last conviction was in July,2021 regarding offences of possession of dangerous drugs, using another person’s identity card and failing to produce identity on demand- he was sentenced to DATC in July, 2021.

(c)  D2 has 25 previous court appearance with 36 previous convictions, they are mostly theft offences, about 18 occasions related to dishonesty offences, others offences including blackmail, common assault, going equip for stealing and drugs offences.

(d)  His last conviction was possession of dangerous drugs in March 2022 and was sentence to DATC.

Antecedent / mitigation

13.  D1 is 31 years old, D1 and his girlfriend were separated in 2019 and their 9 year’s old son is now living with her.  D1 used to work as a construction worker earning about $13,000 per month.   Due to pandemic, D1 was unable to secure any stable job and was unemployed for about 10 days prior to the commission of the present offence as he faced financial difficulties. 

14.  He was released from DATC in December 2021.  However, he was subjected to a supervision order from the DATC. Due to the present offence, he was detained for breaching the supervision order and was released in July,2022.

15.  On this point, the defence referred me to the case of HKSAR v Fung Yu-fung HCCC 117/2019 that the defendant was charged for a drug offence, the Court reduced the sentence by one month.

D2

16.  He is 56 years old, married with 2 sons.  At the time of the offence, he was on the wanted list and he could not return to work or go home.  He stayed in the Cozi Hotel by using PW3’s ID card from 4^th to 7^th February, 2022. 

17.  D2 in his mitigating letter told me that he committed the present offences due to his drug problem.  Now he has come through the drug treatment program and he wants to be a responsible father to his family.  He is remorseful and determined to become a clean man in the future. 

Sentence

18.  There are sentencing guidelines for all the charges that the two defendants have already pleaded guilty to.

19.  In HKSAR v Li Chang-li (2005)  1 HKLRD 864 that sentencing guideline for charge 1 and 2 is one of 15 months after plea.  While charge 4 is 12 months. 

20.  However, there is aggravating factor in the present cases as D2 kept PW3’s ID card for the purpose of concealing his identity because he failed to answer bail for the case of KC /1073/21, therefore he was unable to resume work or go home.

21.  As such, the starting point for charge 1 ,  2 and 4 are each enhanced by 2 months after plea ( 1/3 discount from 3 months )  to 17 months and 14  months respectively. ( 15 + 2 months )  ( 12 months + 2 months )

22.  As to charge 3, the burglary offence, it is well established that for non-domestic burglary, the sentence is one of 2 ½ years.  (30 months)

23.  Given the fact that there are aggravating factors in charge 3 :-

(a)  D1 and D2 acted in concert to commit the burglary offence, simple tool was used to prize open the metal box that contained $300 cash.

(b)  the appalling record of both defendants.

(c)  D1 committed the present offences 2 months after his release from DATC. D2 committed the present offence while he was on bail for KC/1073/21

24.  I consider that the starting points should be enhanced by 9 months.  The total sentence arrived at 39 months (30 + 9 months), given 1/3 discount, it comes down to 26 months. 

25.  As to D1’s sentence, I refuse to exercise my discretion for any further deduction as he should be subjected to punishment once when he was in breach of the supervision order.

26.  His sentence in charge 3 remains at 26 months.

27.  Totality for D2’s sentence: -

Charge 1 :- 17 months

Charge 2 :- 17 months

Charge 3 :- 26 months

Charge 4 :- 14 months

28.  I order sentences for charges 1,2, and 4 to run concurrently, a total of 17 months, 8  months  out of  the 17 months to run consecutively to charge 3 , a total of 34 months.  ( 8 + 26 = 34 )