HKSAR v. LO LAP YIN

DCCC 119/2022

[2023] HKDC 902

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 119 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of burglary. This was a case of burglary of a domestic premises which was a flat situated on the 7^th floor of a building.

2.  The facts can be summarised as follows.  Mr Yau, PW1, resided in a flat on the 7^th floor of a building on Prince Edward Road.  In the early hours of 19 November 2021, he was sleeping on the upper deck of his bunk bed in the flat.  He had closed the flat’s wooden door and metal gate but did not lock them. 

3.  Around 3.45 am that day, PW1 was awakened by some ransacking noise.  He saw a man ransacking his property at the lower deck of his bunk bed.  He shouted at the man, asking what he was doing.  Then the man suddenly picked up PW1’s laptop acting as if he was going to hit PW1 with it.  As PW1 went down the bunk bed to pursue the man, the man had already run out of the flat. 

4.  PW1 found that HK$7,000 cash, three iPhones (each valued at $5,000)  and a charger with a charging cable were stolen from the flat.  PW1 kept a spare key at the ceiling outside of the flat, the spare key was also missing. 

5.  PW1’s charger with charging cable was later recovered at the staircase between the 1^st floor and the 2^nd floor of the building. 

6.  A CCTV installed on the 5^th floor of the building captured that around 3.15 am that day, a male who appeared to be the defendant climbed upstairs.  Around 46 minutes later, he quickly climbed downstairs. 

7.  On 8 December 2021, the defendant was arrested by the police.  Under caution, he admitted the offence. 

8.  In a subsequent video-recorded interview, the defendant said inter alia that he entered the building to see if there was anything to pick up for sale.  He happened to see a key outside a flat and he used it to enter into the flat. 

9.  The defendant has 15 previous convictions including 11 charges of dishonest offences, among them three were burglaries.  He was last released from prison on 13 October 2021. 

10.  I have received written mitigation submission from Mr Yeung, counsel for the defendant, and considered his further oral submission in court. 

11.  I am told that the defendant is 30 years of age and single.  He received secondary education. Before arrest, he worked as a vehicle repair technician, earning about $20,000 a month.  His family background is unremarkable.  The defence counsel says the defendant’s grandparents need constant care and attention.  I also noticed that the defendant might have a hearing problem as he is using a hearing aid in court.

12.  Mr Yeung clarifies in court that the keys were inserted in the keyholes of the wooden door and metal gate of the flat.  The wooden door was left ajar.  Mr Yeung asks the court to treat the defendant as a “sneak thief” or “quasi-sneak thief” because his intention was to pick up something in the building.  He did not break into the flat or climb through any window.  He only wrongfully took it when the opportunity was presented to him. 

13.  Mr Yeung cites a Court of Appeal case in HKSAR v Cheung To Ming[1] and asked the court to give the defendant 40% discount from the usual starting point of 3 years’ imprisonment, and he should be given one-third discount for his plea of guilty. 

14.  In passing sentence, I have carefully considered all the oral and written submissions of counsel for the defendant.  Burglary is a serious offence.  The usual 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. 

15.  Defence counsel submits that the burglary in the present case was opportunistic when the defendant did not break into the flat or climb through any window.  His intention was to “pick up something”. 

16.  I do not agree that this was an opportunistic burglary.  The facts of the present case are very different from the facts in Cheung To Ming relied upon by defence counsel.  I cannot accept that the defendant only entered the building to see if there was anything to pick up for sale. 

17.  In any event, the burgled premises is situated on the 7^th floor of a building and the offence took place at 3 o’clock in the morning.  As captured by CCTV, he remained in the building for around 46 minutes.  The defendant ransacked the burgled premises taking away $7,000 cash and three iPhones.  When the occupant was awakened by the ransacking noise, the defendant even gestured to hit the occupant who must have been frightened. 

18.  There is no room to treat him as a sneak thief for a lower starting point.  Quite the contrary, in my view, the usual starting point should be enhanced for the defendant’s persistent offending.  Since 2007, he has committed 11 dishonest offences including three burglaries.  Admittedly, he was last released from prison on 13 October 2021.  Only one month after his release, he committed the present offence.  Obviously the previous sentences could not deter him from reoffending. 

19.  In the interest of the public, the starting point must be increased by 6 months to deter him from committing further offences.  I adopt 3½ years’ imprisonment as the starting point.  I do not see any mitigating factors in this case apart from his guilty plea for which I will give him one-third discount. 

20.  For the above reasons, the defendant is sentenced to 28 months’ imprisonment.