HKSAR v. LAI CHUNG WAI ANDY

DCCC 960/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 960 OF 2016

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Reasons for Sentence

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1.  The Defendant has pleaded guilty to four charges today: Charges 1, 3 and 4 are burglary offences; Charge 2 is a theft offence.

2.  The premises of Charges 1 and 4 are in a domestic residential building in Lockhart Road.  They are premises rented as what can be described as “one-woman brothels”.  They have their own front door, but consist of a room and a bathroom.  The victims of Charges 1 and 4 were sex workers known to the defendant. 

3.  For Charge 1, the victim told the police that she left the premises that she rented on 7 November 2015 and locked up at about 8 pm that night.  She returned at noon on 9 November to find the premises burgled.  CCTV footage captured the defendant leaving her premises at 8.06 am on that morning.  He was carrying several bags.  She reported having lost $1,200 cash, a Samsung mobile phone and a television.

4.  The victim of Charge 4 had rented the premises on the same floor to the victim of Charge 1.  The defendant entered that premise with another man at about 5 am on 18 January 2016.  They left some 40 minutes later.  This was captured on CCTV footage.  Both were carrying items as they left.  The victim, another sex worker also known to the defendant, reported two televisions had been stolen.

5.  After the defendant was arrested, he told the police that he had had disputes with these two sex workers and committed these offences as a prank.  It is worthy to note that none of their valuables were recovered.

6.  Charge 3 was a burglary of a flat on the 5th floor of 35 Sai Yee Street, Mong Kok.  The owner of the premises reported on 4 January 2016 that his flat had been burgled and a television, water pipe and bedding had been stolen.  CCTV footage captured the defendant in the corridor outside those premises at 4.32 in the morning and also captured him leaving the premises at 5.12 am on the same date. 

7.  These premises are domestic premises.

8.  Charge 2 relates to items found in defendant’s hotel room when he was arrested.  The police raided a hotel room in Boundary Street on 6 July 2016 and arrested the defendant.  In that room the police found stolen items that related to four burglaries of four domestic premises in the Mong Kok area between 26 November 2015 and 22 January 2016.  All the items were of a similar nature in that they were identification documents, travel documents and driving licences.

9.  Under caution, the defendant admitted the burglary of Charges 1 and 4, but not the other offences. 

10.  Defendant’s best mitigation is his plea of guilty today. 

11.  The defendant is not a man with a clear record. In 2011 he was sentenced by the High Court to a total term of 6 years’ imprisonment for an aggravated burglary offence, three burglaries and possession of dangerous drugs.  He was released from this term of imprisonment in August 2014.  I note that he committed Charge 1 in this case only 15 months later.

12.  The defendant is 40 years old, single, lives with his retired parents and is the youngest of five siblings.  He completed Form 5 education and then went on to complete several vocational courses after school, including becoming a qualified electrician in 2004.  Whilst serving his term of imprisonment for the High Court case, he completed even more vocational-type courses.  They include computing, nutrition, marketing and English language. 

13.  The defendant is qualified in several areas.  I have seen copies of his certificates provided during mitigation.  He should be able to hold down a rewarding job, but instead has turned to crime again. 

14.  There are guidelines for sentencing in burglary offences.  Where a domestic premise is burgled, a 3-year starting point is the norm where there are no aggravating or mitigating factors.  Where the premises can be defined as non-domestic, a starting point is normally 2½ years’ imprisonment, with the same proviso - where there are no aggravating or mitigating factors.

15.  Miss Lai, on behalf of the defendant, has said all she can in mitigation.  In particular, she has tried to convince me that the premises for Charges 1 and 4 should be defined as non-domestic premises. They should be defined as business premises. 

16.  The two sex worker victims have told the police that they rent the premises as one-woman brothels.  As is normally the case, they do not live there full time. 

17.  However, what distinguishes these premises, in my view, from offices, shops and restaurants is that they are in residential buildings, rented as residential premises and can be used by the tenants at any time of the day and night.

18.  The victims do not hold down a nine-to-five job or a job with set hours in these premises.  The fact is they could have been in the premises when the defendant decided to burgle -- targetted them.  They certainly left valuables there.  The defendant did target the premises because he knew the tenants and knew those locations.  He is not an opportunistic burglar nor can he even remotely be described as a prankster. 

19.  I have considered Miss Lai’s submission and ultimately reject that submission.

20.  I take the view these premises can be described as domestic premises or, rather, that they should not be classified as non-domestic premises.

21.  Defendant, please stand up.

22.  I take into account the facts of each charge as well as mitigation put forward, including the defendant’s background and the defendant’s plea.

23.  I will take for Charges 1, 3 and 4 a starting point of 3 years’ imprisonment. 

24.  For the theft charge, Charge 2, having taken into account the nature of the items, I will take a starting point of 18 months.

25.  Because of the defendant’s plea today, he is entitled to a discount of one-third.

26.  After that discount is applied, the defendant is sentenced as follows:

(1) for Charge 1, the defendant is sentenced to 2 years’ imprisonment;

(2) for Charge 2, the defendant is sentenced to 1 year imprisonment;

(3) for Charges 3 and 4, the defendant is sentenced to 2 years’ imprisonment for each charge.

27.  There are multiple offences here, which I need to consider together with the totality principle.

28.  Therefore, I order that 2 months of Charge 2, 2 months of Charge 3, and 2 months of Charge 4 be served consecutively to Charge 1, and the balance concurrently.

29.  Therefore, the total sentence is one of 2 years and 6 months.

COURT: Do you understand that sentence?

DEFENDANT: Understood.