HKSAR v. LAI KIM MAN AND OTHERS

DCCC 193/2018

[2018] HKDC 1167

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 193 OF 2018

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REASONS FOR SENTENCE

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1.  Defendants Lai Kim Man (D1), Mandalawalli Acharige Chamira Pradip Rathnasekara (D2), Chan Chik Sum (D3), and Sandanam Raveendra Kumar (D4) pleaded guilty before me to one joint charge of Burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap 210. The particulars of offence are that they, on 7 December 2017, in Hong Kong, entered as trespassers part of a building known as Lok Sin Tong Leung Chik Wai Memorial School, No 12 Ching Hong Road, Tsing Yi, New Territories, with intent to steal therein.

Admitted facts

2.  The facts admitted by the D1 to D4 may be summarized as follows.

3.  D2 and D4 were Form 8 holders.

4.  At about 00:23 hours on 7 December 2017, outside the bus terminal near Cheung Hong Estate, Tsing Yi, the 4 defendants were under police observation. They were seen walking on the pavement of Ching Hong Road towards Tsing Yi Road West furtively.  They stopped outside Lok Sin Tong Leung Chik Wai Memorial School for a while.  They then walked past the school towards the junction with Tsing Yi Road West and then turned back again and stopped at the school.  While being on the phone, D3 pointed at the corridors of the school and pointed at the slope in front of the other defendants.

5.  After talking among themselves as a group, D3 and D4 walked towards Tsing Yi Road West while D1 and D2 remained but kept looking around.

6.  At 00:34 hours the same day, D1 and D2 walked towards the main entrance of the school.  Then they each put on a black mask with D2 also wearing a black cap before both climbed over the fence by the school entrance into the school. At 00:45 hours the same day, D1 and D2 were spotted at the slope outside the school.

7.  At 01:00 hours the same day, D1 climbed over the fence to leave the school.  D2 threw out a black backpack over the fence.  D1 picked it up and ran towards Tsing Yi Road West.  D1 was seen to have thrown away the backpack before the police managed to intercept him nearby.  The recovered backpack was found to contain a crowbar, a pair of pliers, two nylon bags, and a cap.  A pair of gloves was also found nearby.  Upon search of D1, police found in his pockets another pair of gloves, a black mask and a black torch; and they found in his waist bag a red ASUS mobile phone and a white Samsung mobile phone.

8.  At about the same time, police intercepted D2 after he climbed over the fence from inside the school.  In the course of interception, D2’s black cap and black wig fell off.  Upon search of D2, police found in his pockets a black mask and a pair of white gloves.

9.  Meanwhile, D3 and D4 were intercepted by other officers at the junction of Ching Hong Road and Tsing Yi Road West.  On D3 were found 3 mobile phones. In D4’s backpack were found a mobile phone, a cap and 2 torches.

10.  Under arrest and caution, D1 said it was Lan-min who told him to steal computers and he left without stealing any.

11.  Under arrest and caution, D2 said in punti that it was a friend who told him to steal stuff.

12.  Under arrest and caution, D3 said that it was him who called two dark-skinned people and someone called Man-jai to the school to steal computers from the school’s office.

13.  School CCTV footage shows D1 and D2 wandering along a covered corridor.

14.  Under cautioned VRI, D1 stated:-

(a) He agreed with Lan-min that he would steal computers with a South Asian with facial hair from a school office near Cheung Hong Estate for a reward of $1,000 per computer;

(b) Lan-min called him by his mobile phone number 6763 5668 in the evening of 6 December 2017 and invited him to do some work to which he agreed and he eventually met Lan-min early on 7 December 2017 at a taxi station at Cheung Hong Estate;

(c) He found the school office but did not enter it as there was a guard nearby;

(d) He climbed out of the school on the side of Tsing Yi Road West and walked along Ching Hong Road and then met Lan-min and a South Asian man San-ju and told Lan-min that there was a security guard in the school;

(e) He climbed into the school again and climbed up some metal fences to the 1^st Floor when informed by Lan-min that there were computers on the 2^nd Floor;

(f) He told Lan-min over the phone that he could not find computers on the 2^nd Floor and Lan-min instructed him to leave;

(g) He knew D2 had a crowbar with him in the black backpack;

(h) A red ASUS mobile phone found in his waist bag by the police belonged to him and that the phone number of the same was 6763 5668; that the phone number 6652 3234 found in the call record of his ASUS mobile phone was the number of Lan-min; and

(i) A white Samsung mobile phone found in his waist bag was out of order and there were no SIM cards inside.

15.  Under cautioned VRI, D2 stated:-

(a) He went to steal at the school because he was hungry;

(b) He went to steal whatever he could get which could be exchanged for cash;

(c) He went to steal with other people including D1 and D3;

(d) He knew the backpack he was carrying had 2-3 nylon plastic bags, a crowbar and a pair of pliers in it; and

(e) The crowbar and the pliers were to be used for break-in and the bags were for carrying stolen items.

16.  Under cautioned VRI, D3 stated:-

(a) He invited a Sri Lankan called Sanju to help him find more people for the work;

(b) He invited a South Asian man with facial hair to take computers away from a school for a reward;

(c) He called one Man-jai with his mobile phone number 6642 3234 and invited him to steal computers from a school in Tsing Yi;

(d) He would have distributed the reward for the stolen computers to himself, Man-jai, the South Asian man and Sanju;

(e) He instructed Man-jai and the South Asian man to steal from the school office;

(f) A Yee-jeh called to tell him that there were computers in a computer room on the 2^nd Floor of the school; so he told Man-jai and the South Asian man to steal from the computer room and both of them entered the school again;

(g) The black Samsung mobile phone found in his bag was a smart phone borrowed from the bearded South Asian for the purpose of contacting Yee-jeh by WhatsApp because he did not have a smart phone himself;

(h) The Nokia phones found in his bag belonged to him: the larger one with number 6642 3234 contained the contact numbers of Man-jai (6753 5668), Sanju, and Yee-jeh, while the smaller one was a back-up phone; and

(i) He passed a black backpack, 2 nylon plastic bags, a cap, a crowbar and a pair of pliers to the South Asian man.

17.  Under cautioned VRI, D4 stated:-

(a) He reached the vicinity of the school with Pradip and Sam by a van;

(b) He accompanied Sam in Tsing Yi to take some unknown goods;

(c) He and Sam were intercepted by the police together;

(d) Sam was a Chinese man and Pradip was a Sri Lankan man;

(e) Sam met a second Chinese man when they all got off the van in Tsing Yi;

(f) Pradip and the second Chinese man left Sam and him;

(g) Sam told him that a van was coming to take away some goods that Pradip and the second Chinese man were going to bring back; and

(h) He waited with Sam for the van.

Criminal records

18.  The agreed criminal record shows that D1 has 5 previous convictions 2 of which were for theft in 2015.

19.  The agreed criminal record shows D2 has 7 previous convictions one of which was for theft in 2016.

20.  The agreed criminal record shows D3 has 11 previous convictions 3 of which were for burglary and one for theft.

21.  The agreed criminal record shows D4 has 5 previous convictions none of which is similar.

Antecedents

22.  The agreed antecedents statement shows D1 to be aged 28 (27 at the time of the offence); that he received up to F5 education; that he had worked as a transportation worker and decoration worker but was unemployed since he was injured in August 2017.  He was last discharged from prison in April 2017.  He is separated from his wife and lived with his parents and a brother in Tin Shui Wai.  His wife lives with their daughter (5) and son (3) in Yuen Long.

23.  The agreed antecedents statement shows D2 to be a Form 8 holder aged 36 (35 at the time of the offence) [Defence says that he is actually 38 now]; that he has never been employed in Hong Kong because he has been a torture claimant since 2004.  D2 was last discharged in October 2017.  He is single and has no tie in Hong Kong and Sri Lanka.

24.  The agreed antecedents statement shows D3 to be aged 30 (29 at the time of the offence); that he received up to F5 education; that he was previously employed as a transportation worker and driver but was unemployed after his last release in May 2017.  D3 claimed to be a drug addict.  D3 is married and lived with his mother and sister in Yuen Long.  His wife lives with their daughter (2) and her mother in Tin Shui Wai.

25.  The agreed antecedents statement shows D4 to be a Form 8 holder aged 33 (32 at the time of the offence); that he received up to primary 2 education in Sri Lanka; that he has never been employed in HK because he has been a torture claimant since 2004.  D4 is single but has a daughter (2) with his girlfriend in Hong Kong.  He lived with them in Yuen Long.

Mitigation

26.  Mr David Boyton of counsel mitigated on behalf of D1.

27.  Mr Leslie Parry of counsel mitigated on behalf of D2.

28.  Ms Money Lo of counsel mitigated on behalf of D3.

29.  Mr Paul Stephenson of counsel mitigated on behalf of D4.

30.  The following is a summary of the mitigation submissions.

31.  For D1 – 2 ½ years’ imprisonment is for burglary of non-domestic premises; ask for 1/3 discount; Mr Boyton submits that the reason why D4 changed his mind to plead guilty might be due to the fact that D1 had offered to the prosecution to give evidence against D4; however Mr Boyton was not able to provide evidence that the offer was ever communicated to D4 himself or that D4 changed his mind because of D1’s offer.  Furthermore, D1 had not even reached the stage of giving a non-prejudicial statement against D4.

32.  For D2 – adopt D1’s submission on starting point; ask for 1/3 discount; Mr Parry submits that on account of D2’s status as a Form 8 holder, the enhancement should not be more than 3 months.

33.  For D3 – rely on written skeleton submissions and submit 3 mitigation letters; D3’s birthmarks caused him to lose self-esteem so he turned to bad peers; he could not find a job upon last release so turned to crime again; D3 is now remorseful and asks for lenient sentence so that he could see his 3-year-old daughter soon; although D3 was the ringleader, the group did not operate like a well-organized syndicate.

34.  For D4 – adopt D2’s submission on Form 8 holder; strongest mitigation is the plea of guilty.

Sentence

35.  I have considered the mitigation submissions made by the several counsel on behalf of their respective lay clients and the authorities submitted by Mr Boyton and the mitigation letters submitted by Ms Lo.

36.  I reject Mr Boyton’s submission that D1’s offer made to the prosecution caused D4 to change his plea from one of not guilty to one of guilty.  In this respect, I have considered the two letters written by counsel for D4 to the court pursuant to the court’s direction made prior to the hearing.  The court expresses its thanks to Mr Stephenson.

37.  The conventional sentence for burglary of non-domestic premises without aggravating or mitigating features is 2½ years’ imprisonment (see Attorney General v Lui Kam Chi [1993] 1 HKC 215, and HKSAR v Sim Ka Wing, CACC 450/2000).

38.  An aggravating factor common to all defendants is that all took part in a joint enterprise.

39.  There is an additional aggravating factor in respect of D3 in that he was the mastermind or ringleader of the joint enterprise.

40.  I note that D3 committed the present offence shortly after his release for 2 other charges of burglary on 24 May 2017.  That could stand as a separate aggravating factor.  However, in view of the fact that he is already facing enhancement of sentence on the basis of two other aggravating factors, as an act of leniency, I will not further enhance his sentence under this head.

41.  In respect of D2 and D4, there is also an additional aggravating factor in that they were Form 8 recognizance holders.

42.  For D1, I adopt a starting point of 2 years 9 months’ imprisonment.

43.  For D2, D3 and D4, I adopt a starting point of 3 years’ imprisonment.

44.  All defendants have pleaded guilty so they are each entitled to a 1/3 discount in sentence.  I can discern no other mitigating factors of sufficient weight in any of the defendants’ cases to warrant a further discount.

[All defendants, please stand]

45.  D1 will go to prison for 22 months.

46.  D2, D3 and D4 will each go to prison for 2 years.