HKSAR v. LIU CHO NGAI

DCCC 564/2021

[2022] HKDC 458

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 564 OF 2021

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REASONS FOR SENTENCE

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Charges

1.  The Defendant pleads guilty to a charge of burglary. 

Facts

2.  Flat B, 2^nd Floor, of a building on Shanghai Street, Yau Ma Tei, Kowloon, Hong Kong (“Flat B”)  is a unit located in a multi-storey Chinese residential building which has 2 units on each floor. Flat B is further sub-divided into 6 rooms, namely Rooms B1 to B6 sharing a common corridor therein.  At the material time, PW2 was the principal tenant of Flat B while PW1 and PW3 were the tenants of Room B2 and Room B6 respectively.

3.  At about 7 p.m. on 17^th February 2021, PW1 was inside Room B2 when he heard some noise emanating from the main steel gate of Flat B.   Soon PW1 saw a red card intruded through the edge of his door of Room B2, moved in a downward direction and stopped at the door lock area before being removed.  When PW1 opened his door, he saw the Defendant standing near the door of Room B6 which was at the end of the corridor.  The Defendant was seen to slide the same red card down the crack of that door twice before he kicked it open by force.  PW1 then shouted at the Defendant.  PW1 also found the main steel gate of Flat B damaged and a screwdriver lying on the floor. PW1 reported the case to the Police after all.

4.  At around 7:11 p.m. on the same day, the Police searched the Defendant and out of the Defendant’s right trouser pocket, found a “Aeon Member Card” which was believed to have been used by the Defendant during the offence.  Outside the main steel gate of Flat B, the Police found (i)  2 broken metal rods which were believed to have been detached from the main steel gate and (ii)  a screwdriver which was believed to have been used by the Defendant for the commission of the offence.  The Police also found the door lock and the door to Room B6 damaged.

5.  The main steel gate of Flat B required repair costing HK$1,500 while the door lock and the door of Room B6 required repair costing HK$5,000, making a total sum of HK$6,500.

6.  The Defendant was then arrested for “burglary” at 8 p.m. and admitted under caution that he used a screwdriver to prize open the main steel gate of Flat B in order to commit burglary because he had no money for the Lunar New Year.

7.  A video-recorded interview was conducted with the Defendant on 18^th February 2021 during which he had, inter-alia, admitted the following under caution:

(i)  He does not have a fixed abode and did not reside in Flat B. He entered Flat B by breaking the main gate with a screwdriver which he had picked up at a nearby alley.

(ii)  He tried to open the doors of Room B2 and B6 with the Aeon Member Card but was unsuccessful. He also broke the door of Room B6 by kicking it open.

(iii)  The screwdriver and the Aeon Member Card seized at arrest were what he had used at the time of the offence.

8.  The Defendant entered Flat B as a trespasser with intent to steal therein.

Mitigation

9.  The Defendant is 23 years of age, of secondary education level.  He last worked as a ceiling installation worker.  He was unemployed due to the pandemic at the time of the offence.  His wife is a cashier in a convenience store.  They have a 2-year-old daughter together.  He has 3 criminal records, namely one of possession of Part I Poison (DATC), two of theft (shoplifting)  (DATC and fined $100 respectively). 

10.  Defence counsel refers me to the case of HKSAR v Suen Chi-wai [2015] HKCA 439 where the Court of Appeal states that the sentence can be lower where the confrontation of the burglar takes place in the common part of the building not in the confines of the occupant’s own home as the occupant will feel less alarm. 

11.  Prosecution counsel submits that this is not applicable to the differing facts in our present case.  Before this Court is a burglar who was trying to gain access to the sub-divided unit Room B6 whereas in Suen Chi-wai the accepted version was that the burglar was only minded to steal from the common parts of the building.  This is in line with the decision in HKSAR v Ng Wai Hung [2003] 2 HKLRD 338, where the Court of Appeal regards the fear that a victim may encounter as what renders domestic burglary particularly serious. There Yeung JA (as Yeung VP then was)  put it thus:

“28. Burglary is a serious offence and burglary of domestic premises is even more serious as there is always the possibility of confrontation with the occupant who will be subject to extreme fright when a total stranger invades his privacy. The gravamen in burglary of domestic premises is the fear felt by victims that a thief should have invaded their own house. That is why it may be regarded as an aggravating factor in burglary of premises which are expected to be occupied.”

12.  In our present case, the confrontation was immediately of a burglar tampering with the door lock of a sub-divided unit.  I am sure that the occupant was seriously alarmed.  I agree with prosecution counsel’s submissions. 

13.  In Suen Chi-wai the judgment goes on as follows:

11. The remaining question is: should the invasion of a residential building automatically attract the customary starting point of sentence for domestic burglary, irrespective of what the intruder had targeted? We do not think so. If it can be shown to the satisfaction of the sentencing judge that the intruder was stealing from the common areas only and not from inside individual homes, a starting point lower than that of the customary one may – not must – be justified. The facts of the case and all its surrounding circumstances will determine whether and by how much that starting point should be reduced.

14.  It is clear that our present Defendant was not targeting the common parts of the building.  His sentence cannot be reduced on that basis.     

Sentencing the Defendant

15.  The Court of Appeal has stated that the proper starting point for domestic premises would be 3 years’ imprisonment for a first offender of full age(HKSAR v Chan Yui-man [1989] HKCU 36； HKSAR v Lau Pang [2004] 3 HKLRD 565). 

16.  The Defendant admitted to have used a screwdriver to prize open the main steel gate of Flat B.  He was seen to have kicked open the door of Room B6 to gain entry.  The repair cost $1,500 and $5,000 respectively. 

17.  I take a starting point of 3 years.  I reduce it by one-third for his plea of guilty.  The sentence is 2 years.