HKSAR v. WONG PAN FEI AND ANOTHER

DCCC 144/2022

[2022] HKDC 1026

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 144 OF 2022

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REASONS FOR SENTENCE

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1.  Both defendants are convicted of a charge of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210, on their own pleas and agreement to Summary of Facts.

Facts

2.  PW1 was the director of Central Dynasty Properties Limited at the address as particularised in the particulars of offence (“the Shop”).

3.  At 2100 hours on 20 July 2021, PW1 checked and confirmed that everything in the Shop was intact before leaving.  At 1200 hours on 21 July 2021, he returned to the Shop and found that its rear gate and rear wooden door were both prized open.  The Shop was also ransacked.  After checking, PW1 found that the following property of the Shop was missing:-

(a)  about 1,000 keys of about 300 flats;

(b)  about 5 bank passbooks; and

(c)  cash of HK$3,500.

4.  PW2 was an estate agent of the Shop and he found that the following property which belonged to him had gone missing:-

(a)  1 bag;

(b)  2 mobile phones;

(c)  3 keys with 1 key chain;

(d)  3 name cards;

(e)  1 document bag;

(f)  some leaflets of the Shop; and

(g)  1 wallet.

5.  CCTV cameras in the vicinity of the Shop captured that on 21 July 2021:-

(a)  At 0428 hours, D1 and D2 left Room 706 of Hotel COZI at No. 443 Castle Peak Road, Kwai Chung, New Territories.

(b)  At 0433 hours, they went past a restaurant next to the Shop.

(c)  At 0541 hours, D1 and D2 each carrying a black plastic bag entered the hotel and they returned to Room 706.

(d)  At 0604 hours, they carried a black plastic bag and left Room 706 of the hotel. They later went past Kwai Wing Road and D2 abandoned some items contained in the black plastic bag.

(e)  At 0633 hours, D2 carried a black plastic bag and entered Mai Shun Industrial Building at Kwai Cheong Road, and he took an elevator of the building. D1 later also entered the building, carrying a white bag and a takeaway box. He took an elevator to the 10^th floor of the building.

(f)  At 0728 hours, D1 and D2 took an elevator of the building without carrying any plastic bag and they left the building.

6.  Investigation showed that D1 was the tenant of Room 706 of the hotel. D1 was arrested on 23 July 2021 for burglary, and under caution, he admitted that he acted as a lookout whilst “Sai Dee” entered the Shop and stole therein.  On the following day, the police arrested D2. 

7.  With D1’s assistance, police recovered PW2’s property in a storage room rented by their friend in Mai Shun Industrial Building.

8.  In the video-recorded interview, D1 said under caution that “Sai Dee” was D2.  On 21 July 2021, D2 came to Room 706 of the hotel to find him, and then they went out for food.  When they went past the Shop, D2 said he wanted to take a look.  After D1 finished buying food and returned, D2 was trying to prize open the iron gate of the Shop with a screwdriver, and D2 asked him to act as a lookout.  Later, D2 successfully prized open the Shop’s iron gate, entered the Shop and took 3 bags of items from the Shop.  D1 himself helped D2 to carry the bags. They then returned to the hotel.  He saw there were about 1,000 keys and other items in the bags.  D2 put them all in a black garbage bag and left the hotel. D1 also admitted that he and D2 were the persons who went past the restaurant next to the Shop in the CCTV footages.

9.  D2 said under caution in his video-recorded interview that he went to the hotel to find D1 at the material times.  They later went out for food and went past the Shop and found its iron gate broken.  He then asked D1 to act as a lookout, he picked up a screwdriver nearby and prized open the iron gate.  He entered the Shop and took 3 bags of items, out of which they threw away the keys at the street near the hotel. He kept the cash and had already spent it.  D2 also identified himself and D1 in the CCTV footage of the hotel and the industrial building.  He admitted stealing PW2’s property from the Shop.

Criminal Record

10.  D1 has 4 previous criminal records involving convictions of 5 charges. None was similar to the present offence.  He was last released from DATC on 13 April 2017. 

11.  D2 has 2 previous criminal records involving convictions of 2 charges. None was similar.

Mitigation

D1

12.  D1 was born in mainland China.  He is aged 39.  He came to Hong Kong in 1997 and has completed primary education in the mainland China.  He divorced in 2013 and he lived in a rented hotel room at the material times.  He was a renovation worker prior to his arrest, earning about $12,000 per month.

13.  Defence counsel conceded that the starting point for sentence in a burglary of non-domestic premises is 2½ years’ imprisonment (R v Wong Man [1993] 1 HKC 80).  In the case of HKSAR v Sim Ka Wing (CACC 450/2000), it was said that a certain degree of premeditation and planning had been built in this guideline for burglary and that the conventional starting point can be lowered in the case of opportunistic burglar.

14.  It was said that the subject offence happened in the early hours when the premises was closed with no one was inside the Shop.  The defendants did not encounter or confront any persons in the premises, nor did they cause any shock or injury to others.

15.  It was also said that the iron gate of the premises was already broken and D2 picked up a screwdriver nearby to prize open the iron gate.  Therefore, the defence submitted that there was a certain degree of opportunistic element, the burglary was not premeditated and did not involve extensive planning or sophistication in the commission of the offence. 

16.  It was also said that D1 took a passive role by just standing outside and acting as a lookout.  D1 did not enter the Shop, nor did he receive any benefit from the offence.

17.  Defence counsel submitted that D1’s voluntary confession and his plea of guilty to the offence in the circumstances where there was a lack of sufficient evidence against him shows genuine remorse, and that there ought to be further discount in sentencing.  He referred this court to the case of HKSAR v Tsang Kai On [2011] 2 HKLRD 340 as well as the case of HKSAR v Ng Wing Chung (CACC 176/2005).  He submitted that had D1 not been fully co-operative upon arrest and volunteered information, the stolen properties of PW2 may not be recovered.

18.  He urged this court to adopt a sentencing starting point of no more than 2½ years’ imprisonment, and to afford D1 a full one-third sentencing discount by reason of his guilty plea, and to also give him further sentencing reduction in view of his readiness to confess when the evidence against him was limited and his testimony has led to the recovery of PW2’s property.  Defence counsel also submitted to the court the mitigation letter from D1.

D2

19.  D2 is aged 43.  He was born in the mainland China where he received education up to Secondary 2 level.  He came to Hong Kong in 2001 and married in 2012.  He has 3 children aged 19, 16 and 14, all studying.  At the time of the offence, he was a butcher selling fresh pork, earning about $15,000 per month. He was the sole breadwinner of the family.

20.  It was submitted that D2 committed the present offence out of momentary greed and that he fully co-operated with the police upon his arrest. 

21.  Defence counsel conceded that the only aggravating factor is the offence was committed by 2 persons.  He also asked this court to give D2 one-third sentencing discount by reason of his guilty plea.  He lodged with this court the mitigation letter from D2 and asked this court to give D2 a lenient sentence.

Discussion

22.  In passing sentence, this court has carefully considered all that was said on behalf of the defendants as well as the mitigation letters from the defendants. 

23.  Although the value of the stolen property is of modest value and no one is expected to be within the Shop at the time, one must realise, however, that the 1,000 keys belonging to 300 clients of the estate agent shop, the loss of these keys presented significant threat to the owner/occupier of the concerned property.  D2 said that he threw away the 1,000 keys in the street but he was not willing to bring the police to recover them at the precise spot where he discarded them.

24.  The rear gate and rear wooden door of the Shop were prized open obviously by D2 using the screwdriver.  Although D2 said he picked up the screwdriver nearby, this court is not willing to accept this contention.  Defendants said that they were out from the hotel to buy food.  But this was contradicted by the CCTV footage because the only thing they did after exiting from the hotel was committing the burglary charge in question.

25.  This burglary is not opportunistic in nature as suggested by the defence.  It involves the actual prizing open of the Shop.  Defence counsel conceded that the sentencing starting point for non-domestic burglary offence is 2½ years’ imprisonment.  2 persons were involved in the commission of the offence, which amounts to an aggravating feature, for which the sentencing starting point is enhanced to 2 years and 9 months.

26.  Although D1 did not enter the Shop, he acted as a lookout and did help carry the stolen properties on the way back to the hotel. 

27.  Both defendants pleaded guilty so they were entitled to full one-third sentencing discount, bringing the sentence to 22 months’ imprisonment.  It is well established that the remorse of the defendant has been subsumed in the one-third sentencing discount.

28.  Upon arrest, D1 had volunteered information leading to the arrest of D2 and had also helped to recover PW2’s property, for which the court is willing to afford him further sentencing discount of 3 months. 

29.  Accordingly, D1 is sentenced to 19 months’ imprisonment and D2 is sentenced to 22 months’ imprisonment for the offence.