HKSAR v. LAI HON LUN AND ANOTHER

DCCC 188/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 188 OF 2013

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Reasons for Sentence

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Charge and facts

1.  D1 and D2 plead guilty to the burglary of a shop on the first floor of a shopping centre in Mong Kok. 

2.  At the late hours on 18 December 2012, the police were conducting anti-burglary operations in plainclothes when D1 and D2 wandered outside 2 closed shops on the ground floor of the shopping centre.  D1 and D2 then went up to the first floor.  They kept an eye on D1 and D2 by the CCTV in the management office.  D1 and D2 left the shopping centre but at 11:25 p.m. entered a storeroom on the first floor.  Shortly afterwards D1 and D2 entered the shop in question and left at 11:45 p.m. with filled bags in their hands. 

3.  The police arrested and cautioned them.  D1 said he had burgled the shop out of impulse.  D2 said it was D1’s idea to burgle the place and he (D2) had acted as the lookout outside the shop in the meantime. Both said they had found a saw and a pair of pliers at the patio of the shopping centre to prise open the shop to enter to steal. 

4.  D1 had thrown the following items on the floor:

(1) Cash RMB¥1,000;

(2) Some pills;

(3) 26 bracelets.

5.  D2 was carrying 2 recycle bags with the following contents:

(1) Cash HK$2,635;

(2) Cash RMB¥4,599.70;

(3) Cash NT$1,536.60;

(4) Some foreign currencies;

(5) 1 commemorative coin;

(6) 4 sets of stamps;

(7) Some cosmetic products.

6.  The shop traded in coins, banknotes, stamps and jades, etc.  The proprietor had left the shop after securing the gate at 7 p.m. on the date of the offence.  The items recovered from D1 and D2 had a value of $50,000 in total. 

Defendants’ personal background and mitigation

7.  D1 and D2 are each 35 years of age, of F. 1 education level.  D1 has a common law wife and a 1-year-old son.  D2 is single.  Their personal and family circumstances can have no bearing on their present sentences.  D1 had 19 convictions for dishonesty as follows:

(1) 4 for burglary (from 1991 to 2002);

(2) 11 for theft (from 1990 to 2011);

(3) 2 for robbery (from 1998 to 2002);

(4) 2 for handling stolen goods (from 2008 to 2010).

D2 had 11 convictions for dishonesty as follows:

(1) 10 for theft (from 1996 to 2012);

(2) 1 for robbery (2002).

Sentencing considerations

8.  In R v Wong Man [1993] 1 HKC 80, the Court of Appeal suggests 2 ½ years as the starting point for non-domestic premises for a first offender of full age.  Aggravating factors include, among others, previous convictions, particularly those of similar nature (at para 15).

9.  In HKSAR v Sim Ka-wing CACC 450/2000, the Court of Appeal explains that the said starting point should be adjusted where there are aggravating factors such as a high degree of planning.

10.  In HKSAR v. Khan Asif [2012] 1 HKLRD 404 is submitted to this Court as an example that a lower sentence may be imposed where the facts are unusual, such as a technical entry with no property loss. 

11.  In HKSAR v. Cheng Wai Kai CACC 338/2007, the sentence was aggravated because the defendant was a professional burglar. 

Sentencing D1 and D2

12.  They had acted in a joint enterprise on the one hand but the items were recovered on the other hand.   Even if D2’s allegation is to be accepted, ie that it was D1’s suggestion to burgle the place, I do not see it as an aggravating factor relating to D1’s sentence as D1 had then proceeded to do nothing more culpable than D2 in the offence.  Given that D1’s last burglary conviction was in 2002, I do not regard him as a recidivist burglar but he and D2 have been recidivists for offences involving the dishonest taking of properties.  This still justifies some, though not the full extent of, aggravation in sentence.  I take a starting point of 3 years each. I reduce it by one-third because of their guilty pleas.  There are no other mitigating factors.  Each is sentenced to 2 years’ imprisonment.