HKSAR v. MA KA KIT

DCCC 123/2020

[2020] HKDC 656

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 123 OF 2020

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a single charge of burglary. There are two other defendants named on that indictment. The burglary, on the face of the charge, took place at a non-domestic premises in Kowloon, and a safe with $234,747 and various invoices, keys and other currency of $84,900 and hard disks and a trolley were taken.

2.  Defendant admits his role in this burglary.  He has admitted the facts.  The facts show the premises were secured by locking the doors and gates of the building.  The premises the next day was found to have been ransacked and the safe that had been kept under a desk was missing. What was taken from the premises can be seen already outlined in the charge on the indictment.  The total loss was some $350,000-odd.

3.  Defendant was captured on CCTV entering the building via an open side gate on the evening of 30 April 2019.  He was seen to be pushing a trolley, communicating with another person by way of mobile phone. The defendant had moved the safe that had been stolen onto a trolley and then was seen to load it onto a light goods vehicle which was driven by another defendant.  They then drove away to the home of yet another defendant.

4.  It would appear that another defendant, the 3rd defendant, is related to the person who owns the company.

5.  The defendant was asked to burgle the premises for some $20,000 but says he only ever received $10,000 as reward.  The defendant admitted the offence during the course of video recorded interview and the defendant admits acting jointly with the 1st and 3rd defendants, entering the office as a trespasser and stealing the items therein.

6.  As far as the defendant’s background is concerned, he is now aged 36.  He is divorced, has five children in all, and I was told he was working as a chef prior to his arrest. 

7.  He has 11 previous criminal convictions, dating from 2004 up until 2014.  He has offences of dishonesty but none of previous offences of burglary.  More recently, the offences relate in 2014 to what are driving offences, both in 2012 and 2014.

8.  The defendant in mitigation puts forward his plea of guilty and his remorse, the fact that he is prepared to take responsibility for what he did and is ready to serve a term of imprisonment.

9.  The sentencing in a case such as this way is governed by guidelines (see from the case of R v Wong Man, CACC 372/1992 that the starting point for burglary of a non-domestic premises for a person of clear record after a plea of not guilty in the absence of aggravating or strong mitigating factors is 2½ years’ imprisonment.  That is 30 months’ imprisonment.

10.  Now, that sentence of 30 months’ imprisonment can be adjusted either upwards or downwards and can be adjusted upwards if there are aggravating factors.  I am referred to the case of HKSAR v Cheng Wai Kai, CACC 338 & 339/2007, that lists the aggravating factors. Those are that:  

(1) the offence is carefully planned and skilfully executed, involving the use of heavy instruments or equipment;

(2) the offence is committed by two or more people;

(3) the offence targets at substantial premises and involves substantial properties;

(4) the offender is a professional burglar, not just an opportunist;

(5) the offender has previous convictions, particularly previous convictions of a similar nature; and

(6) the offender commits multiple offences.

11.  It is conceded, in respect of the defendant, that certainly this offence is committed by two or more people and the offence has targeted at substantial premises and involves substantial properties.  We know the safe was taken with substantial amounts of money in it. 

12.  One could also look at “the offence is carefully planned and skilfully executed”, though I am not sure that this case falls into that category. 

13.  There is no use of heavy equipment.  It would appear to be the defendant managed to get in through an open side door and the offence simply involved going in and taking the safe and bringing it out on a trolley.

14.  I agree with the defence in their submission that the two aggravating factors are that the offence is committed by two or more people, and the offence targets a substantial premises. 

15.  In respect of these aggravating factors, I consider the court should adjust by 3 months upwards for each of the aggravating factors.  That would mean that the factors of aggravation would enhance the starting point for sentence to one of 36 months’ imprisonment. 

16.  The defendant is naturally entitled to a one-third discount from that, and so the final sentence that I will pass will be one of 24 months’ imprisonment.