HKSAR v. LEE KA LUN

DCCC 804/2019

[2020] HKDC 808

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 804 OF 2019

____________

____________

REASONS FOR SENTENCE

1.  D1 pleads guilty to one joint charge of burglary of domestic premises with Siu Chi Pong (D2), contrary to section 11 of the Theft Ordinance[1] (charge 1) and one charge of possession of 9 tablets and 4 tablet fragments containing zopiclone, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance[2].

2.  D2 pleaded guilty to the burglary on 18 June 2020 and was sentenced to 2 years’ imprisonment by Deputy District Judge Cheung.   

3.  Full particulars of the offences are set out in the summary of facts admitted by D1.

4.  On 19 April 2019 Ms Bagni rented Flat B on the 1st Floor, No 18 Nam Kok Road in Kowloon City.  On 28 April 2019 Ms Bagni placed her personal belongings in the flat and left at 12:30 p.m. after locking the wooden door.   Ms Bagni did not however lock the metal gate.

5.  At 3:15 p.m. the same day Mr Ho, who rented Flat B1 on the same floor, returned to his flat and noticed a wooden door had been placed at the staircase of the building and the metal gate of Flat B had been left ajar.

6.  When Mr Ho entered his flat the electricity suddenly went off.  Mr Ho therefore went to Flat B where the electricity meter was placed.  When Mr Ho opened the metal gate of Flat B, D1 and D2 suddenly walked out of the kitchen towards the entrance of Flat B.  D1 claimed they had gone there to conduct repair work.

7.  Mr Ho left the building and reported the case to the police.  Mr Ho also informed Ms Bagni.  

8.  Ms Bagni returned to her flat at around 3:35 p.m. and found the wooden door missing and D1 and D2 standing outside her home.  Ms Bagni did not know who they were and asked why they were there.  D2 replied they were looking for a place to rent. 

9.  D2 then went inside the flat and took out a white plastic bag containing a pair of sneakers and told Ms Bagni that someone had removed the wooden door, entered the flat and took the plastic bag but he had stopped that person from stealing the plastic bag. 

10.  Ms Bagni left the building and waited downstairs for the police to arrive.  D1 and D2 left the building shortly afterwards at which time Ms Bagni took photographs of them.  Mr Ho also gave a description of D1 and D2 to the police who arrived at the scene.  D1 and D2 were then intercepted nearby. 

11.  Ms Bagni confirmed the wooden door was the door of her flat.  D2’s fingerprint was later found on the inner side of the wooden door right below the security chain. 

12.  Ms Bagni checked her belongings and found that a nylon bag inside which the white plastic bag containing the sneakers had originally been put, had been moved from her bedroom to the living room.  Ms Bagni also found some other bags in the flat had been unzipped.  Photographs showing the outside and inside of the flat have been submitted to court.

13.  The tablets and tablet fragments of zopiclone were found inside D1’s left shoe. Under caution D1 said they were for his own consumption. 

Mitigation

14.  In passing sentence, I have carefully considered the oral and written submissions of Mr Lai, including that D1, aged 35, is married and lives with his parents while his wife resides in the Mainland[3].

15.  I take into account that D1 has been unemployed since 2015 and committed the burglary out of impulse and financial difficulty[4].

Starting point

16.  The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.

17.  Mr Lai submits D1 was not a professional burglar but an opportunist only[5].  I do not agree this was an opportunistic burglary.  The defendants did not pass by an open door or vacant premises but instead removed the wooden door to gain entry to the flat. I note the Deputy Judge in sentencing D2 also found the burglary was not opportunistic[6].

18.  I am satisfied the proper starting point after trial is 3 years’ imprisonment. 

Aggravating factors

19.  In sentencing D2 the Deputy Judge took a starting point of 3 years with no enhancement.  Mr Lai submits the same starting point should be adopted for D1.

20.  Although noting D2 had previous convictions, including for burglary, the Deputy Judge appears not to have considered whether there were any aggravating features and simply stated that in her view she did not consider the facts of the case warranted a starting point of more than 3 years’ imprisonment[7].    

21.  With respect I disagree with the Deputy Judge.  There is clearly the aggravating feature that the burglary was committed by two burglars, who removed the wooden door to gain entry to the flat[8].  Only because they were caught in the act were they unsuccessful in stealing anything. 

22.  In my view the starting point should be enhanced by 3 months to 3 years and 3 months’ imprisonment. 

Persistent offending

23.  Although D1 does not have previous convictions for burglary he does have convictions for robbery in 2000 and handling stolen goods in 2018.  D1 has also been convicted of drug offences, including trafficking in dangerous drugs in 2014 when he was sentenced to 4 years and 10 months’ imprisonment. 

24.  D1 last appeared in court on 13 September 2018 when he was sentenced to 4 months’ imprisonment for handling stolen goods.  D1 says he was released the same day. This is confirmed by both Mr Ng and the Correctional Services Department. Mr Ng explains that although D1 was given bail in that case he did not take up the offer of bail and had therefore already served the sentence.

25.  D1 therefore committed the present burglary just over seven months later.  I am satisfied D1 is properly to be regarded as a persistent offender and enhance the starting point by a further 3 months to 3 years and 6 months’ imprisonment. 

26.  I would add that D2 is very fortunate his sentence was also not enhanced by reason of his persistent offending. 

27.  Giving D1 full credit for his plea of guilty reduces the sentence to 2 years and 4 months’ imprisonment.

Possession of Part I poison

28.  Mr Lai says the zopiclone was to help D1 sleep.   

29.  Taking into account that the possession was in the street and not at home, the poisons being hidden in D1’s shoes and that D1 has a previous similar conviction in 2006 when he was fined $2,000, I am satisfied that a short custodial sentence is appropriate.  I am satisfied the proper starting point after trial is 3 months’ imprisonment. 

30.  When D1 appeared before the Deputy Judge on 18 June this year he indicated a plea of not guilty to this charge.  As a consequence, there has been two extra court hearings on 27 July 2020 for mention and today.  Arguably this is not an early plea and D1 is therefore not entitled to a full one-third discount. 

31.  Mr Lai explains this arose due to a disagreement with D1’s previous lawyers as to whether an expired prescription provided D1 with a defence to the charge.  After careful consideration I will give D1 full discount for pleading guilty which reduces the sentence to 2 months’ imprisonment. 

Totality

32.  Possession of a Part 1 poison is a wholly distinct and separate offence from the offence of burglary for which a consecutive sentence is appropriate subject to consideration of totality of sentence.   

33.  I am satisfied a wholly consecutive sentence is appropriate making a total sentence of 2 years and 6 months’ imprisonment, which I am satisfied properly reflects D1’s overall criminal culpability on the two charges and takes into account D1’s personal circumstances and the seriousness of the offences[9].   

Sentence

34.  D1 is convicted and sentenced to consecutive sentences of 2 years and 4 months’ imprisonment on charge 1 and 2 months’ imprisonment on charge 2.  The total sentence to be served by D1 is 2 years and 6 months’ imprisonment.