HKSAR v. LEE KA MAN AND ANOTHER

DCCC 512/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 512 OF 2012

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Reasons for Sentence

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Introduction

1. D1 and D2 are convicted on their own plea of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance (Cap 210).

Facts

2. At about 7 am on 23 March 2012, Ms Ng Ka-yan (“PW2”) left her home situated at Flat B, 5^th Floor, No.35 South Wall Road, Kowloon City, Kowloon (the “Flat”). Before leaving, PW2 had secured all the doors (including the iron gate and wooden door to the Flat) and windows of the Flat.

3. At about 7 pm on the same day, Mr Fong Tung-fung Alex (“PW1”), who lived on the 7^th Floor of the same building, returned home. When he was walking up the stairs from the 5^th Floor to the 6^th Floor, he spotted two male strangers walking downstairs. PW1 then found a rucksack beside a rubbish bin on the 7^th Floor. He saw a metal crowbar placed inside the rucksack. PW1 therefore made a report to the police.

4. At about 7:34 pm on the same day, a team of police officers attended scene. PC8398 (“PW3”) saw D1 and D2 coming out from the building. D1 and D2 boarded a private car (the “Car”) parked right outside the entrance of the building. D1 got into the front passenger seat and D2 the rear passenger seat. Meanwhile, there was another man (“Male 3”) standing at the boot of the Car. Male 3 was putting a large rucksack into the boot of the Car and closed the lid thereof. When PW3 and his party approached the Car, Male 3 suddenly turned around and fled.

5. Meanwhile, D1 came out of the Car and fled towards Nga Tsin Wai Road. PW3 gave chase and managed to intercept D1 at the junction between Nga Tsin Wai Road and South Wall Road. During the chase, D1 had thrown a pair of gloves and some jewellery (including necklaces, earrings and rings) from the front pocket of his jeans onto the street.

6. On the other hand, D2 remained seated in the Car.

7. Both D1 and D2 were arrested. D1 was found to have HK$2,900 and RMB1,015 cash on his person.  D2 had HK$27 cash on his person.

8. Subsequently, the police found from the Car a number of items, including:

(i) a clarinet, a notebook computer and some jewellery inside the Car;

(ii) a rucksack containing various breaking equipment (including a hydraulic cutter, crowbars, screwdrivers, spanners and a saw) inside the boot of the Car; and

(iii) a beef knife with a cardboard sheath underneath the rear passenger seat.

9. PW2 returned to the Flat at night on the same day. After she had inspected the Flat, she found that:

(i) the lock of the iron gate to the Flat was prized loose;

(ii) the window of the bathroom was prized open; and

(iii) there were signs of ransacking in the Flat.

10. PW2 confirmed that the following items totally worth HK$48,700 were missing:

(i) a clarinet;

(ii) a notebook computer;

(iii) a diamond ring;

(iv) 5 silver rings;

(v) 11 silver necklaces;

(vi) 9 silver wrist chains;

(vii) 21 pairs of earrings;

(viii) a Nintendo NDS game player;

(ix) a digital recorder;

(x) some stationery;

(xi) 2 “Agnes b” wrist watches;

(xii) a “Seiko” wrist watch;

(xiii) a “Agnes b” phone case; and

(xiv) a “Levis” chess.

11. Some of the stolen stationery and the Nintendo NDS game player were found scattered at the staircase of the building. All other PW2’s missing items, except the “Seiko” wrist watch, were recovered from the Car.

12. At all material times, D1 and D2, together with Male 3, having entered into the Flat as trespassers, stole therein the items PW2 found missing as aforesaid.

D1 and D2’s previous conviction records and antecedents

13. D1 has 13 previous convictions, including 4 convictions of robbery, 2 convictions of burglary and 3 convictions of theft. His last conviction was burglary sentenced for 2 years and 9 months in May 2008. D1 was born in Hong Kong in March 1971. He is now 41. He has received education up to Form 1 level. He used to be an air-conditioning electrician.       

14. D2 has a clear record. He was born in Hong Kong in October 1984 and is now 27. He has received education up to Form 5 level. Between 2008 and March 2012, he worked as a decoration worker.

Mitigation

15. In mitigation for D1, Ms Chong submitted a letter written by D1 and some medical reports showing that D1 has sustained injury on his left index finger thus affecting his finger mobility and work performance. I have already indicated that D1’s injury was not a valid mitigating factor. Ms Chong also submitted that D1 was not the ring leader in this offence. In this connection, I am of the view that D1 being part of the joint enterprise in this offence, his culpability is not any less than any other burglar. Had he been the instigator of the offence, he might have received a heavier sentence. Ms Chong also submitted that most of the stolen property was recovered.

16. In mitigation for D2, Mr Bok submitted a letter written by D2 saying he was remorseful and asking for leniency. Mr Bok also submitted that the offence was instigated by Ah Kwong who is still at large, and that the present offence was not committed at night time, and that no one was inside the Flat when the offence was committed.

Sentence

17. In burglary of domestic premises, 3 years’ imprisonment is the proper starting point for a first offender of full age: R v Chan Yui Man CACC 36/1988, R v Chan Wing Ching CACC 100/1991, R v Luk Wai Kit CACC 99/1992, R v Wong Man CACC 372/1992, Attorney General v Lui Kam Chi [1993] 1 HKC 215 and HKSAR v Lau Pang [2004] 3 HKLRD 565. However, D1 is not a first offender of burglary cases.

18. In HKSAR v Cheng Wai Kai [2008] HKCU 932 in which the appellant was charged with four counts of burglary and one count of attempted burglary, Yeung JA (as he then was) said:

“The starting point can be adjusted upwards if there are aggravating circumstances such as (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 and not just an opportunist; (5) the offender has previous convictions, particularly previous convictions of a similar nature, and (6) the offender commits multiple offences.”

19. In the present case, D1’s previous convictions of robbery, burglary and theft is an aggravating feature justifying an upward adjustment in sentence. Further, the fact that the present case was committed by 3 persons is another aggravating feature. On the other hand, although a beef knife was found from the Car, there is no evidence that it was used during the present burglary. I will not take into account the discovery of the beef knife as an aggravating feature.

20. Having carefully considered the facts of this case, the mitigation submitted by Ms Chong, the aggravating features against D1, I adopt a starting point of 45 months’ imprisonment for D1. One-third discount is given to D1 for his guilty plea, thus reducing the sentence to 30 months’ imprisonment. There being no other valid mitigating features justifying further reduction in sentence, D1 is sentenced to 30 months’ imprisonment.  

21. In relation to D2, his case is aggravated by the fact that 3 persons were involved in this burglary. On the other hand, D2 has a clear record. I will adopt a starting point of 37½ months’ imprisonment on D2. One-third discount is given to D2 for his guilty plea, thus reducing the sentence to 25 months’ imprisonment. There being no other valid mitigating features justifying further reduction in sentence, D2 is sentenced to 25 months’ imprisonment.