HKSAR v. LUI CHO YIU AND OTHERS

DCCC 648/2020

[2021] HKDC 259

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 648 OF 2020

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REASONS FOR SENTENCE

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1.  Three defendants whom I shall address as D1, D2 and D3 pleaded guilty before me to charges on a Charge Sheet as follows.

2.  Charge 1 against D1 & D2 only is one of Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.  Particulars of offence are that D1 & D2, on 18 May 2020, in Hong Kong, having entered as trespassers part of a building known as “Grandwood Supermart”, Shop No 1, Ground Floor, Tin Ching Shopping Centre, Tin Ching Estate, Tin Shui Wai, New Territories, stole therein 5 cartons of cigarettes, cash of about $45,000 Hong Kong currency and one trolley.

3.  Charge 2 against D3 only is one of Handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210.  Particulars of offence are that D3, on 18 May 2020, in Hong Kong, dishonestly undertook or assisted in the retention, removal, disposal or realization of certain stolen goods, namely two cartons of cigarettes, property belonging to GRANDWOOD SUPERMART TRADING LIMITED, by or for the benefit of another, or dishonestly arranged to do so, knowing or believing the same to be stolen goods.

Facts admitted by the three defendants

Charge 1 Burglary (against D1 and D2 only)

4.  On 18 May 2020, at about 3:40 am, D1 and D2 walked out from the small door on the subject shop’s roller shutter taking with them paper cartons.  They placed the cartons on a trolley outside the shop.  While they were pushing the trolley towards Tin Kwai Road, some coins fell out from the trolley.  D1 and D2 continued pushing the trolley to the carpark outside Tin Ching Estate towards the One Sky Mall.

5.  Meanwhile the shopowner being alerted to a burglary at her shop, turned up at 4:40 am and found the door to the roller shutter prized.  CCTV outside the shop was sprayed black.  The wire to a CCTV inside the shop was cut.  The repair cost came to $4,500.

6.  Seven bags of coins ($45,000) previously placed at the cashier counter, and 5 cartons of cigarettes (valued at $150,000) previously placed at the cashier counter and storage room were missing.  These cartons contained a total of 250 rolls of cigarettes with each roll containing 10 packets of cigarettes.  A trolley (valued at $300) was also found missing from the shop.

7.  The seven bags of coins and 3 of the above cartons of cigarettes were later recovered from a flower trough of Tin Ching Shopping Centre’s carpark.

8.  CCTV captured D1 had at about 2 am on the day of offence entered the shop with mask and gloves on and carrying a backpack; he was holding two long screwdrivers and a torch and was searching around.  CCTV also captured D1 and D2 had at about half-past three in the morning exited the shop with a trolley, several bags and 5 cartons boxes.  Other CCTVs show that shortly before 4 am on the same day D2 concealed 3 carton boxes in the flower trough of Tin Ching Shopping Centre’s carpark and both D1 and D2 concealed 2 other carton boxes in the bushes outside Ching Pik House, Tin Ching Estate.

Charge 2 Handling stolen goods (against D3 only)

9.  At 6 am the same day, D2 and D3 wandered outside Ching Pik House and left.  About half an hour later, D3 returned to the spot and then left. Another period of 20 minutes passed before D2 came to pick up something from the bushes outside Ching Pik House.  Several minutes later, D2 and D3 carried two cartons boxes into Ching Pik House through the building’s emergency exit on the Ground Floor.  Minutes later, D2 left Ching Pik House empty handed through its main entrance.

10.  At 4:17 pm the same day, D3 (with changed clothes) carried 2 large nylon bags and took the lift from 1^st Floor to Ground Floor of Ching Pik House.  D2 appeared in the building’s lobby and helped D3 carry one of the nylon bags.  They got on a taxi and left.

Arrest and Caution

11.  D3 was arrested shortly after 8 pm the same day at Ching Pik House. Under caution, D3 said, “Tsoi Jai (ie D2) found and asked me to carry this morning’s cigarettes, but the burglary is unrelated to me.”

12.  D3’s home on 1^st Floor of Ching Pik House was searched where 4 rolls of cigarettes (ie a total of 40 packets of cigarettes) were found. Under caution, D3 said, “These 4 rolls of cigarettes were given by Tsoi Jai to me, the rest had already been taken by him.”

13.  Subsequently, at the police station, D3 under caution described how D2 asked him to help move and retain the 2 cartons of cigarettes which he believed to be stolen goods; they later removed the bulk of the cigarettes to Mongkok by taxi.

14.  On 19 May 2020, D2 was intercepted by the police outside Ching Pik House.  Under caution for burglary, D2 said he was only acting as a lookout for Go Lo (ie D1) to commit burglary.  Back at the police station, D2 said under caution that D1 asked him to act as a lookout for the burglary; he also admitted his role in the burglary and admitted asking D3 to help retain and later remove the cigarettes.  D2 also described how he and D3 together moved the cigarettes to Mongkok by taxi and delivered the same to a tall and fat man.

15.  On 20 May 2020, D1 was arrested in his flat in Yau Tong.  Under caution, he said, “I committed the burglary, I asked Pai Gwat (D2) to act as a lookout for me, give me a chance.”

16.  Back at the police station, D1 under caution described how he alone prized the shop’s door with screwdriver while wearing gloves; he poked a CCTV with screwdriver and covered it with cardboard; he then prized the cabinets and called D2 to help remove bags of coins and cartons of cigarettes; together with D2, he removed these items by use of a trolley taken from the shop; he placed the bags of coins and some cartons in the flower trough.

Criminal records

17.  D1 has 20 previous court appearances culminating in 32 previous convictions including 7 burglaries and 15 other offences of the Theft Ordinance.

18.  D2 has 19 previous court appearances culminating in 33 previous convictions including 9 burglaries and 18 other offences of the Theft Ordinance.

19.  D3 has a previously clear record.

Antecedents

20.  D1 is 77 years old (76 at the time of the offence), unemployed.  He was last discharged from prison on 18 March 2020.  He has been suffering from hypertension but according to defence counsel has recovered.  Also according to defence counsel, before arrest, D1 lived alone in Yau Tong.

21.  D2 is 66 years old now and when he committed the offence, unemployed. He was last discharged from prison on 20 July 2019.  He has been suffering from gout.  Before arrest, he lived with his wife in Tin Shui Wai.

22.  D3 is 63 years old (62 at the time of the offence).  He was a logistics delivery worker.  He has been suffering from diabetes and hypertension and requires long-term medication. He lives with his wife and daughter in Tin Shui Wai.

Mitigation

D1

23.  Mr Stanley Lau of counsel mitigated on behalf of D1.

24.  The following is a summary of the mitigation submissions.

25.  D1 retired from being a decoration worker in 2015.  Thereafter, he has been relying on CSSA and receives $4,300 per month.  He only has $500 pocket money after spending on monthly household expenses.  He had an operation in 2015 for a serious ailment but has recovered.

26.  D1 committed the offence because his wife did not have income from her usual job as a waitress as a result of Covid-19 pandemic and sought help from D1.

27.  Mr Lau referred to the case of HKSAR v Cheng Kong Yiu [2011] 4 HKLRD 291 at para 39 to remind me that the normal starting point for a non-domestic burglary for a fresh offender is 30 months’ imprisonment.

28.  Mr Lau also referred to the case of HKSAR v Cheng Wai Kai, CACC 338/2007, at para 15, to remind me that:-

“The starting point can be adjusted upwards if there are aggravating circumstances such as; (1) the offence is carefully planned and skillfully executed involving the use of heavy instrument 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 conviction of a similar nature, and (6) the offender commits multiple offences.”

29.  Mr Lau submitted that the present offence was planned but could not be said to be carefully planned; that the equipment used by D1 were screwdriver and torch which were not heavy equipment; that only two defendants were involved in the offence of burglary; the value of property was $195,300 was a medium sum; that three cartons of cigarette and the 7 paper bags of money had been recovered meaning the actual loss to the victim was about $60,000; that D1 could not be said to be a professional burglar.  It is however accepted that D1 was a repeated offender and his record was undesirable; that most of his records related to dishonesty.  It is emphasized that D1 was very remorseful having admitted his part to the police and has indicated his plea as early as 30 December 2020.

30.  Mr Lau reminded the court that D1 is very old and a large part of the stolen property had been recovered.

31.  Mr Lau submitted a mitigation letter (in Chinese, copy only) purportedly written by ex-wife of D1, which urged the court to give D1 one last chance and alleged that D1 will not re-offend.

D2

32.  Mr Henry Ma of counsel mitigated on behalf of D2.

33.  The following is a summary of the mitigation submissions.

34.  At the time of the offence, D2 relied on public assistance to the tune of $3,560.

35.  Mr Ma relies on the cases of R v Wong Ming [1993] 1 HKC 80 and Secretary for Justice v Tsang Hon Yin [2004] HKCU 1497, CAAR 5/2004, to submit that the proper starting point in a case of burglary of non-domestic premises is 2 years 6 months’ imprisonment.  Mr Lau submits that this starting point has already taken into account a degree of premeditation and a measure of planning.

36.  Mr Ma fairly drew the court’s attention to the aggravating features in this case:-

(a)  Door to the roller shutter was prized; CCTV camera was sprayed black; CCTV cable was cut; total repair fee came to $4,500;

(b)  D2 is a recidivist: last conviction was conspiracy to commit burglary for which he was sentenced to 24 months and he was discharged in July 2019; and

(c)  Joint enterprise.

37.  On the other hand, Mr Ma submits that there are the following mitigating features in the case:-

(a)  D2 indicated his plea as early as 22 October 2020 – the first mention date;

(b)  Most of the stolen property has been recovered – the actual loss was only 2 cartons of cigarettes to the value of $60,000;

(c)  No persons stayed overnight in the premises therefore there was no risk of encounter; and

(d)  There was no direct evidence against D2; prosecution only relies on D2’s admissions to support their case.

38.  Mr Ma also relies as mitigation on D2’s assistance to the authorities by drawing to the court’s attention the following chronology of events:-

(a)  22 October 2020 – D2 indicated his plea whereas D1 and D3 asked for no plea in court and the matter was adjourned to 8 December 2020 for their seeking legal advice;

(b)  1 December 2020 – D2 gave a non-prejudicial statement to the police; the prosecution accepted his evidence and placed his name on the list of prosecution witnesses;

(c)  3 December 2020 – both the NPS and the amended witness list were served on D1 and D3;

(d)  8 December 2020 – D3 indicated his plea and D1 applied for one more adjournment to seek legal advice; and

(e)  30 December 2020 – D1 indicated his plea and a date of 26 February 2021 was fixed for plea and sentence.

39.  Lastly, Mr Ma asked that 6 months be added on the basic starting point for the dual aggravating factors of recidivist and joint enterprise; on this count, he referred to the case of HKSAR v Chan Siu Po, CACC 175/2016. For assistance to authorities including that which led to the arrest of D1, Mr Ma asked for at least 40% discount on sentence; on this count, he referred to the case of HKSAR v Lo Tsz Tung, Stephanie [2019] 1 HKC 309.

D3

40.  Mr Lawrence Chung of solicitor mitigated on behalf of D3.

41.  The following is a summary of the mitigation submissions.

42.  D3’s role was limited to assisting in the retention etc of 2 cartons of cigarettes with total value of $60,000.

43.  D3 acted out of greed of obtaining 4 rolls of cigarettes as reward.  He was cooperative with police.

44.  Mr Chung submitted on D3’s behalf a certificate of good citizenship.

45.  Relying on the cases of HKSAR v Tumurbaatar Enkhbaatar [2010] 4 HKC 211 and HKSAR v Lau Foon (transliteration) & Anor, DCCC 36/2016, Mr Chung asked for a starting point of 12 months’ imprisonment and that any increase above the normal point be kept to a minimum; he asked for full credit to be given for D3’s plea.

Sentence

46.  The normal starting point for a case of burglary of non-domestic premises is 2 ½ years’ imprisonment.

47.  Both D1 and D2 have dreadful criminal records including those of burglary cases.  In fact, it is no exaggeration to say that they have committed offences all their adult lives and they have been popping in and out of prison.  To this extent, they are professional criminals if not also professional burglars.  Note the instruments they used in the present burglary: black spray for destroying the CCTV camera and screwdriver for forced entry and/or cutting wire resulting in repair cost.  They committed the offence in concert.  The value of property stolen was substantial but simply because of sheer luck of the victim, most of it has been recovered.

48.  D1 was last released from prison for another burglary (with a 22 months’ sentence) only two months prior to the present offence.  D2 was last released from prison for a conspiracy to burgle (with a 24 months’ sentence) only 10 months prior to the present offence.

49.  For all these aggravating features, I will add on 9 months to the basic starting point for both D1 and D2.  Hence, their enhanced starting point has become 3 years and 3 months.

50.  I have considered raising the starting point further against the mastermind of the burglary but decided in the end not to do so.  The reason for that was I could not ascertain with some confidence who the mastermind was.  On the one hand, D1 seemed to have asked D2 to participate in the burglary; on the other, D2 played a more significant role in getting at least 2 of the cartons disposed of by getting D3 involved.

51.  For D2, the material shows that he has assisted the authorities to the extent that he was instrumental in D1 and D3 pleading guilty to their respective charges.  For this, I shall give him a 41% discount (inclusive of the 1/3 discount for pleading guilty) off the starting point.  I do not give D2 more discount on this score because I found it distasteful that he now seeks to benefit (even partly) by turning against someone (a person of previous clear record) whom he himself brought into a crime.

52.  For D1, since he has pleaded guilty in time, his discount will be 1/3. For his very old age, I shall give him an extra one-month deduction after the 1/3 discount.

53.  For D3, he has been convicted of handling only, on a solo basis.  I note he is a person of previous clear record.  With respect to Mr Chung for D3, the cases that he cited do not say that the sentence for “Handling” is 12 months.  What they seem to suggest was that the sentence for handling ought to bear some relation to the sentence for the principal offence (in the cases cited it was theft, a much less serious offence under the circumstances pertaining to those cases).  Here, the offence is burglary of non-domestic premises.  Even taking away the aggravating features peculiar to D1 and D2, the normal sentence for that type of burglary is 2 ½ years’ imprisonment after trial.

54.  Bearing all that in mind, I adopt a starting point of 18 months’ imprisonment in the case of D3.  He pleaded guilty in good time for which he shall have a 1/3 discount.  For his previous clear record, I shall give him an extra month’s deduction after the 1/3 discount.

55.  There are no other mitigating factors of sufficient weight to justify any further discount in the case of any of the defendants.

Conclusion

(Defendants, please stand)

56.  The sentence for D1 is 2 years and 1 month’s imprisonment.

57.  The sentence for D2 is 23 months’ imprisonment.

58.  The sentence for D3 is 11 months’ imprisonment.