HKSAR v. WONG HO LEONG

DCCC 446/2020

[2021] HKDC 613

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 446 OF 2020

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant is convicted of a charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 on his own plea and agreement to amended Summary of Facts.

Facts

2.  The market at Lei Tung Commercial Centre at Lei Tung Estate closes at 7 pm each day.  All entrances were closed this time. 

3.  On 30 December 2019, at around 6:30 am, a vegetable stall in the market was found ransacked.  A safe containing cash of about $40,000 and two money boxes containing cash in a total sum of about $1,000 were found missing.

4.  CCTV footage in the vicinity captured the defendant and another leaving their place of residence in Lei Tung Estate, walking towards the centre.  They were later seen to get off from a private vehicle and wandered outside the market. 

5.  Later, the defendant arrived outside one of the entrances of the market and appeared to be opening the lock.  He then entered the market, headed to the stall and took out 1 safe and 2 cash boxes from the stall.  He put these items into a plastic vegetable basket and left.  The defendant holding the basket with his hands joined another outside the market and they headed towards the direction of Lei Yung Estate Road.

6.  At a later stage, three persons including the defendant, one holding a large object in his or her hands, put the large object into the back compartment of a vehicle. 

7.  At 6:40 am, the defendant and two other arrived at a hotel in Wan Chai where afterwards they entered Room 803.  The defendant was seen holding a pile of banknotes in his hand.  Hotel records confirmed that the room was booked in advance and that the room was checked in on 27 December 2019 and checked out on 31 December 2019.

8.  On 1 January 2020, the defendant was arrested for burglary and under caution, he admitted burgling the market with his girlfriend and the driver of the vehicle.  The admission was post-recorded on the same day. 

9.  In the subsequent first cautioned video-recorded interview on 2 January 2020, the defendant denied the offences.

10.  In the second cautioned video-recorded interview on 4 May 2020, the defendant admitted the offence but he said he acted alone and that he gained entry to the market by pulling apart the lock of one of the entrances.  However, he said he abandoned the safe as he could not open the same and he only stole some coins from the stall.  He admitted also having worked in the same stall 2 months before the incident.

Criminal Record

11.  The defendant has 7 previous criminal records involving convictions of 12 charges, of which 5 were similar to the present offence.  However, these 5 convictions dated back to the year 2008.  His last conviction was in January 2020 for which he was sent to DATC.

12.  The defendant is aged 30 years old.  He was born in Hong Kong and studied up to Form 4 level.  He is single and lives with his girlfriend, the co-defendant in the present case.

13.  Prior to his arrest, he worked as a fruit seller, earning about $20,000 per month, and he said that he contributed half of it to his parents.

14.  It is submitted the defendant committed the offence as he wanted to get fast money in order to help his father to pay compensation resulting from a traffic accident.

15.  Defence counsel also submitted the circumstance of the burglary was not sophisticated.  The defendant entered the market alone at night time and there was minimal risk of confrontation between the defendant and the other members of public.  It was also said that the stolen safe and the money boxes were placed under the rack for displaying carrots, and that the defendant admitted the offence at the time of arrest, and that he pleaded guilty at the earliest opportunity.

16.  Defence counsel also conceded that the usual sentencing starting point for non-domestic-premises burglary is 30 months’ imprisonment.  She asked that the same be adopted.  She also asked that one-third sentencing discount be given to the defendant by reason of his guilty plea.

Discussions

17.  In passing sentence, this court has carefully considered all that was said on behalf of the defendant. 

18.  The defendant here acted together with two others as a joint enterprise in the commission of the offence.  He used the knowledge he acquired whilst he was previously employed by the stall to ascertain the whereabouts of the safe and the money boxes.  There was advance booking of the hotel, arranging the co-defendant girlfriend to keep watch outside the market and the arrangement of a vehicle taking them all away from the scene after the offence.  So this is not an opportunistic burglary.  There was a certain degree of planning and using the knowledge previously acquired in his course of employment. 

19.  It is accepted the value of the property stolen is of modest value and no one is expected to be within the vegetable stall at the time.

20.  Although the defendant has 5 similar convictions in the past, they dated well over 13 years back, and this court is not going to enhance the sentence starting point by reason of these previous similar convictions. 

21.  The fact that the defendant committed the offence for monetary purpose of course is not a valid mitigating ground.

22.  As conceded by defence counsel, the sentencing starting point for burglary involving some sort of planning as in the present case of non-domestic premises is 30 months’ imprisonment.[1]  The same, however, is enhanced by 3 months by reason that 3 people were involved in the commission of this offence as a joint enterprise.

23.  This court considers that the only valid mitigating factor is that of the defendant’s own guilty plea, of which he is entitled to one-third sentencing discount.  The defendant is therefore sentenced to 22 months’ imprisonment for the offence.