HKSAR v. Kwok Cho Yiu

DCCC 967/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 967 OF 2016

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a count of Theft and anther count of Burglary, contrary to respectively section 9 and 11(1)(b) and (4) of the Theft Ordinance, Chapter 210.

Summary of Facts

2.The defendant and Mr Li Kwok Hung (PW1) were working in the same company.  PW1 was a driver of medium goods vehicle bearing registration number RM 7763 (“MGV”) and defendant being the logistic worker of the same vehicle.

3.In early 2015, PW1 allowed the defendant to place his personal belongings at his residence located at Room 2512, Ying Shun House, Choi Ying Estate, Ngau Tau Kok as the defendant was moving home frequently.  PW1 also invited the defendant to come to his home for meals from time to time.

4.In the morning on 27 November 2015, while both PW1 and the defendant were working, PW1 parked the MGV at Skye Parking Tat Yeung Road, Kwai Chung and placed his backpack containing two keys to the main gate and the wooden door of his home inside the vehicle cabinet of the MGV as usual.  PW1 left the MGV door unlocked and found the said keys missing upon his return at 9 pm on the same day.  At the same time, PW1 found the defendant had left the office without informing their supervisor. (1^st charge)

5.At around 2 am on 28 November 2015, PW1 arrived home after work and found the defendant’s belongings no longer in the premises. It was also found that two Rolex watches valued at $50,000 and $29,000 respectively along with their boxes and certificates were missing.  All doors and windows of the premises were intact and the defendant was out of reach.  The case was subsequently reported to the police.

6.Upon investigation, it was found that the defendant has taken the two Rolex watches to two pawn shops and the two watches were pawned at $38,000 and $20,000 at the respective pawn shops on 27 November 2015.  Both watches could be redeemed anytime within 4 months.

7.On 2 September 2016, the defendant was arrested. In a subsequent cautioned interview, the defendant admitted that he had taken PW1’s home keys without his authority and went to his flat with a view to taking back his belongings on the material day.  However, upon entering the premises, he remembered the two Rolex watches and took them away out of greed.

Mitigation

8.The defendant is 25 years old, currently living with his brother and father.  He worked as a transportation worker before he was arrested.  He had five previous criminal records, three of which were theft related offences.  However, they were all conviction back in 2006.  He was lastly convicted of possession of dangerous drugs and was sentenced to 2 months’ imprisonment.

9.In mitigation, the defendant expressed his remorse and was willing to bear all the consequence.

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[1]:-

(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.

11.Having considered all circumstances, I impose the sentence as follows:-

Charge 1: I take 12 months’ imprisonment as the starting point. Given the plea indicated before trial date is fixed, 1/3 discount is warranted, the sentence is reduced to 8 months’ imprisonment.

Charge 2: I take the usual starting point of 3 years’ imprisonment, and after 1/3 discount, the sentence is reduced to 2 years’ imprisonment.

12.As the two charges are basically part and parcel of each other, I order the two sentences to be served wholly concurrently.  As such, the defendant is sentenced to 2 years’ imprisonment.