HKSAR v. NGAI KAI LEONG AND OTHERS

DCCC 773/2020

[2021] HKDC 1015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 773 OF 2020

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REASONS FOR SENTENCE

D1 to D3 are jointly charged with an offence of "Burglary" (Charge 1). D4 alone faces a charge of "Handling stolen goods" (Charge 2).

2.  D1 to D3 pleaded guilty to Charge 1.  D4's trial is fixed for 30 August 2021 with 3 days reserved.

Summary of Facts

Charge 1

3.  Mr. Chan (PW1)  was the owner of a jade workshop situated at Ground Floor, No.550 Canton Road, Yau Ma Tei ("the Workshop").  Mr. Leung (PW2)  was the only employee of PW1 and he slept on the mezzanine of the Workshop at night.

4.  About 9:00 a.m. on 16 February 2020, PW2 woke up and went outside the Workshop.  He saw the metal gate of the Workshop closed but did not notice if it had been prized.  Shortly before noon, PW1 returned and found the metal gate having been prized.  He also found 24 baskets of raw jade pieces and 2 bags of raw jade pieces (valued at $185,600 in total)  missing.  The Police was alerted.

5.  PW1 later found his trolley at the back alley of Nanking Street.  The repair costs of the metal gate were about $1,000.

CCTV evidence

6.  CCTV footage captured D2 and D3 getting off from a white 7-seater car ("the Car")  at Canton Road near the junction of Nanking Street.  They walked into the back alley towards the Workshop around 2:18 a.m. on 16 February 2020.  About a minute later, the CCTV camera of the Workshop facing the back alley was sprayed black.  D2 and D3 came out of the back alley and boarded the Car.  About a minute later, D1 and D3 alighted from the Car and walked into the back alley towards the Workshop.  They lingered outside the Workshop before boarding the Car.  The Car was driven away around 2:27.

7.  About 4:46 a.m. on the same day, D1 to D3 were walking outside No.550 Canton Road.  The Car (bearing plate number LR2897)  stopped near the Workshop.  D1 to D3 boarded the Car about a minute later.  They alighted from the Car around 5:03.  D1 and D3 walked into the back alley towards the Workshop whilst D2 lingered outside the Workshop.  About 5:16, D3 walked away from the Workshop carrying a bag in each hand.  About 5:20, the Car stopped outside the Workshop.  A male named Sha Kai-lun got out of the Car and helped loading goods onto the Car.  The Car was driven away around 5:25.  D3 was seen walking back towards the Workshop.  He then walked away a few seconds later, followed by D1 and D2 who were pushing a trolley.

Arrest of D1

8.  D1 was arrested on 24 March 2020.  Under caution, he admitted that he took part in burgling the Workshop.

9.  In his video recorded interviews, D1 admitted that he burgled the Workshop around 5:00 a.m. on 16 February 2020.  He claimed that he walked past the Workshop and its door was open.  He saw some raw jade pieces and decided to take some away.  He found a trolley on the street and used it to move the raw jade pieces.  D1 said he saw 1 to 2 persons at the Workshop, but was not acquainted with them. They were also moving the raw jade pieces away from the Workshop.  Suddenly, it occurred to D1 that the raw jade pieces were worthless, so he just left them and the trolley on the street.  D1 identified himself in the CCTV footage.

Arrest of D2

10.  D2 was arrested on 3 June 2020.

11.  In his video recorded interview, D2 explained how the idea of stealing raw jade pieces from the Workshop came about by him and a male surnamed Sha.  D2 admitted that about 2:00 a.m. on 16 February 2020, Sha drove him to Canton Road near the Workshop. Upon arrival, D1 and D3 were already there.  They scouted around in the vicinity of the Workshop and met up around 4:00 a.m. the same day.  D2 claimed that he acted as a lookout at the back alley whilst D1 and D3 prized open the door and entered the Workshop.  The 3 of them used a trolley to move about 10 odd bags of raw jade pieces from the Workshop to the Car.  Sha drove the Car away by himself.  Sha dropped off the raw jade pieces at D2's home and they moved the bags to his home together.  D2 also described the subsequent disposal of the raw jade pieces.  He identified himself in the CCTV footage.

Arrest of D3

12.  D3 was arrested on 27 June 2020.  In his video recorded interview, D3 admitted that he was acquainted with D1.  Call records showed multiple calls amongst D1 to D3 and Sha several days before and after the burglary of the Workshop. 

Mitigation

D1

13. He is 46 and has 15 conviction records, which included 5 "Theft" offences and 3 "Burglary" offences. His counsel Ms. Yap informed me that D1 is divorced. He resides with his mother and daughter (aged 12). Prior to his arrest, D1 was unemployed. He was a transportation worker earning $18,000 per month before the social events in 2019.

14. In mitigation, Ms. Yap submitted that D1 is the sole breadwinner of his family. Because of the social events in 2019 and the pandemic in 2020, his work hours were dramatically reduced, creating tremendous financial burden on him. He therefore foolishly committed the present offence.

D2

15. He is 64 and has 16 conviction records, which included 3 "Robbery" offences and 2 "Burglary" offences. His counsel Mr. Lee informed me that D2 is divorced. He was a construction worker, but was unemployed at the time of his arrest. In mitigation, Mr. Lee submitted that in the present case, only simple tools were used to break into the Workshop. Mr. Lee stressed that nearly all stolen goods were recovered; the Workshop basically suffered no loss. On this issue, Mr. Ching for the prosecution clarified that most of the stones were found, but the more valuable pieces are still missing.

D3

16. He is 43 and has 8 conviction records, which included 1 "Theft" offence. His counsel Mr. Cheung informed me that D3 resides with his mother and younger sister. He is single, but has a son (aged 8 months). At the time of the offence, D3 was a delivery worker earning $15,000 per month. In mitigation, Mr. Cheung submitted that D3 committed the burglary out of greed. His reward was supposed to be $2,000, but he did not receive it. Mr. Cheung stressed that D3 has no similar conviction and is remorseful for his wrongdoing.

17. Prosecuting counsel Mr. Ching informed me that on 15 July 2021, D3 was sentenced to 8 months' imprisonment for "Unlawful assembly" at West Kowloon Magistracy. His suspended sentence of 2 months' imprisonment in KCCC 2297/2019 was activated. In other words, D3 is currently serving a total of 10 months' imprisonment.

Sentence

18. Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious)  is no mitigating factor for committing a crime.

19. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. D1 to D3 were seen scouting the area a few hours in advance and they each played their own part in the burglary. A car and a driver were arranged to remove the stolen properties. I consider these to be advance planning and 4 culprits acting in concert, which are both aggravating factors[1]. The value of the stolen stones was over $180,000, whereas only about $23,000 worth of raw jade pieces were recovered. It is also an aggravating factor. I consider 3 years' imprisonment to be the appropriate starting point for Charge 1.

D1

20. He is no stranger to "Burglary" and "Theft" offences. I will raise his starting point to 39 months' imprisonment. With the timely guilty plea, the sentence is reduced to 26 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D1 to 26 months' imprisonment.

21. I have just sentenced D1 in DCCC 577/2020 (a case of multiple burglaries which took place before the present case). Bearing in mind the totality principle, I consider a global starting point of 5.5 years' imprisonment appropriate for both cases. With the timely guilty pleas, the overall sentence becomes 44 months. To achieve this, I order 8 months in the present case to run consecutive to the sentence in DCCC 577/2020.

D2

22. He is no stranger to "Burglary" and "Robbery" offences either; however, his previous similar convictions are more than 20 years ago. His last conviction is also more than 10 years ago. I accept that he has managed to behave himself for at least a decade. I will not increase his starting point on the basis of being a repeated offender. I adopt a starting point of 3 years' imprisonment for D2. With the timely guilty plea, the sentence is reduced to 24 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D2 to 24 months' imprisonment.

D3

23. I adopt a starting point of 3 years' imprisonment for him. With the timely guilty plea, the sentence is reduced to 24 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D3 to 24 months' imprisonment.

24. I am aware of D3's current sentence of 10 months' imprisonment. Having considered the totality principle and the nature of the offences involved, I order 2 months in the present case to run concurrent to all his existing sentences.