HKSAR v. Wong Shuk Kam and Others

DCCC 713/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 713 OF 2016

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REASONS FOR SENTENCE

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1.The 1^st defendant pleaded guilty to a count of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Chapter 210.

Summary of Facts

2.Ng Ka Mo (PW1) and her family, including her two children, Ng Hok Keung (PW2) and Ng Tsz Yan (PW3) are residing at Room 602, Ming Yu House, Kin Ming Estate, Tseung Kwan O, New Territories, Hong Kong, at the material time (the “Premises”). At around 10 am on 19 April 2016, PW2 was the last person to leave the Premises and checked that it was secured prior to leaving.  At around 6:25 pm, PW3 returned to the Premises and found that the iron grille was opened and the metal bars were bent.  The wooden front door was also ajar and had marks of being prised open.  Upon entering the Premises, it was found that the following items were missing:-

(a) One iPad, estimated value $3,694.

(b) Six metal ornaments.

(c) One black Rolex watch.

(d) Two gold silver Rolex watches.

(e) Two gold necklaces with pendants.

(f) Three Louis Vuitton bags.

(g) One Gucci bag.

(h) One wrist chain.

(i) HK$7,000 cash

(j) Three Hong Kong passports of PW1 to PW3.

(k) Two birth certificates of PW2 and PW3.

The total value of the missing properties was estimated to be around $233,194.

3.The 1^st defendant was arrested on 25 April 2016 at her residence, being Room 603 of the very same building where PW1 was living. Under caution, the 1^st defendant said that a male had asked her to assist in stealing things from her neighbour’s flat and she helped because she was in lack of money.

4.Subsequently, during a cautioned video-recorded interview, the 1^st defendant further admitted the following:-

(a) On 18 April 2016, the male asked her if she knew any rich family and then she mentioned the occupants of the Premises who often spoke about buying brand-name products.

(b) The male then told her that he would contact her again shortly for breaking into the Premises.

(c) At about 11 am the next day, that is 19 April 2016, she and the male opened the Premises building’s back door and let two unknown persons enter the building.

(d) They then went together to the Premises’ front gate and the 1^st defendant saw the male take out two screwdrivers and she watched the male and the two unknown persons prise into the Premises with the screwdriver.

(e) Subsequently, the male gave her one of the gold silver Rolex watches (the “Watch”) and told her not to worry.

(f) The 1^st defendant then passed the Watch to a Chan Siu Wai, that is the 3^rd defendant in the present case, and asked him to help her to sell it. The 3^rd defendant later returned and gave her HK$7,000 cash as proceeds of selling the Watch.

5.The CCTV footage of the building of the Premises showed that at around 11:05 am on 19 April 2016, the 1^st defendant opened the building’s back door and allowed two unknown males entering the building.  At around 12:21 pm on the same day, the abovementioned two persons leave the building via the same back door but were seen holding bags.  The CCTV footage was also shown to the 1st defendant and confirmed by her during the cautioned video-recorded interview. 

6.Apart from the Watch, no other stolen properties could be recovered.

7.At the material times, the 1^st defendant and other persons unknown jointly entered the Premises as trespassers and stole property therein.

Mitigation

8.The 1^st defendant is aged 46, divorced with two daughters aged 18 and 12 respectively and the 1^st defendant is now receiving CSSA $6,000 per month and the 1^st defendant is unemployed.  The 1^st defendant has two elderly parents living in the mainland and were seriously ill and I am told by the defence counsel that her father, who is over 70, has done an operation in his lung and it was mitigated that the 1^st defendant was in need of money for the father’s operation.  The two daughters of the 1^st defendant are now living on their own without regular adult’s attention. 

9.The 1^st defendant is of clear record, the best mitigation is certainly the her guilty plea today.

Sentence

10.There is a well-settled sentencing guideline for burglary of domestic premises.  According to the guideline, a starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment.  The starting point can be adjusted upwards if there are aggravating circumstances such as:-

(a) The offence is carefully planned and skillfully executed involving the use of heavy instruments or equipment.

(b) The offence is committed by two or more persons.

(c) The offence targets a substantial premises and involves substantial properties.

(d) The offender is a professional burglar or not just an opportunist.

(e) The offender had previous convictions, particularly previous convictions of similar nature.

(f) The offender commits multiple offences. That is the case of HKSAR v Cheng Wai Kai, CACC 338-339/2007.

11.I found that there are some aggravating features in the commissions of burglary in the present case: that is, the offence was actually committed by a total of four persons at the material time; the properties involved, or stolen, are of substantial values; and most of them could not be recovered.

12.In the circumstances, I consider that the usual starting point of 36 months should be enhanced by 3 months to reflect these aggravating features. Since the 1^st defendant pleaded guilty to the charge, she is entitled to the usual full one-third discount on her guilty plea.  Therefore, the 39 months of starting point is reduced to 26 months’ imprisonment. 

13.Given the 1^st defendant’s clear record and her family background, being a divorced woman with two young girls, respectively 18 and 12 years old, now living on their own because their mother is remanded, I consider that given these circumstances, on humanitarian grounds, 6 months’ reduction is warranted.

14.As such, the 1^st defendant is sentenced to 20 months’ imprisonment.