HKSAR v. Ho Ka Tang, Roy

DCCC 1102/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO 1102 OF 2016

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to three offences of burglary (Charge 1, Charge 4 and Charge 5) and two offences of theft (Charge 2 and Charge 3).

SUMMARY OF FACTS

Charge 1

2.The burglary took place in a restaurant “Hong Kong Taste” located on the ground floor of one of the buildings in Un Chau Street, Cheung Sha Wan.  At about 6:00 am on 8 June 2016, Mr YL Law left the roller shutter of the restaurant half-open.  At round 7:30 am on the same day, Mr Law discovered a Samsung Galaxy S5 mobile phone (worth $3,500) which was placed at the cashier of the restaurant near the said roller shutter missing.  The case was reported. 

3.Under caution, the defendant admitted, inter alia, that (i) he walked into the restaurant and stole the Samsung mobile phone from somewhere near the cashier; (ii) he had already sold the Samsung mobile phone for about $800 and spent the whole  sum of money.

Charge 2

4.The theft took place inside the MK88 Amusement Centre in Mongkok.  At about 3:15 pm on 13 July 2016, Mr PH Cheung left his backpack (worth $400) containing a pair of headphones (worth $60) and an umbrella (worth$150) next to his seat of a car racing video game. At about 3:30 pm on the same day, Mr Cheung discovered his backpack missing and made a report to the police.  CCTV of the Amusement Centre captured the defendant taking Mr Cheung’s backpack.

5.Under caution, the defendant admitted stealing the backpack and throwing it away.

Charge 3

6.The theft again took place inside the same MK88 Amusement Centre as mentioned in Charge 2.  At about 0:00 am on 20 July 2016, Ms CY Leung placed her handbag (worth $200) containing her mobile phone (worth $3,800), a pair of headphones (worth $500), cash of $100 and her wallet containing 2 bank cards, her HKID card, medical card and two membership cards plus one Ocean Terminal Annual Pass and Disney Magic Access next to her seat of a car racing video game.  About 5 minutes later, she discovered her handbag missing.

7.On 22 July 2016, the police intercepted the defendant and seized Ms Leung’s HKID card, medical card and two membership cards, one Ocean Terminal Annual Pass and Disney Magic Access from the defendant.  Under arrest and caution, the defendant admitted stealing Ms Leung’s handbag, selling her mobile phone for $800 and spending the said sum.

Charge 4

8.The burglary took place in a “CSL” shop situated in Shamshuipo.  At about 2:05 pm on 2 August 2016, Ms SW Lu left the roller shutter of the shop half-open.  At about 2:40 pm on the same day, the security alarm went off.  Ms Lu then saw the defendant rushing out of the shop suddenly.  She found a Samsung S7 edge mobile phone (worth $5,998) and a Samsung S7 mobile phone (worth $5,198) originally connected to the security alarm system and placed on the display rack near the entrance of the shop missing.  The case was reported to the police.

9.Under caution, the defendant admitted, inter alia, that he had pulled the two phones off from their security wires, sold them for about $2,000 and spent the whole sum of money.

Charge 5

10.The burglary took place in a café “Itamono Café” situated in Cheung Sha Wan.  At about 11:30 pm on 2 August 2016, Mr KP Chan left 3 mobile phones (worth $7,500 in total) on the cashier desk which was near the entrance of the café. At about 7:00 am on 3 August 2016, Mr Chan returned to the café and found the 3 mobile phones had gone missing. 

11.CCTV of the café captured the defendant stealing the 3 mobile phones at about 6:30 am on 3 August 2016.  At about 5:20 pm on the same day, the police saw the defendant acting furtively and intercepted him for investigation and a search.  Upon which, the defendant confessed to selling the 3 mobile phones.  Under caution, he confessed to stealing the 3 mobile phones and selling them for $500 due to financial pressure, and asked for a chance.

12.His clothing at the time of the arrest resembled with that as shown in the CCTV footage and thus was seized.

13.The total value of the stolen properties involved in all 5 charges was $27,406.

CRIMINAL RECORD

14.According to his criminal record, the defendant has convictions of various offences including 32 theft offences and 1 burglary offence. He was released on 5 March 2016 after serving sentence for his last conviction of a theft offence. 

MITIGATION

15.The defendant, aged 44, is married and resides with his father in a public housing estate unit in Tseung Kwan O.  He received education up to Form 2.  Apart from being a drug addict, he does not have any health problems.  He had previously worked as a bar tender and kitchen worker. 

16.He committed the present offences due to his financial pressure and greed.  He was cooperative with the police throughout and made full confessions under caution.

17.A mitigation letter written by the defendant was also submitted to the court for consideration.  In gist, the defendant expressed in the letter: (i) his remorse for the commission of the offences and deep reflection over what he has done; (ii) that he was just an opportunist when committing the offences and did not know what he did constituted more serious offences of burglary; (iii) his concerns that he might not be able to look after his weak and ill-health father if he was sentenced to imprisonment.

18.Mr Pang also referred the court to a number of authorities[1] regarding the starting points for both burglary and theft offences.

SENTENCE

19.I have carefully considered everything said on behalf of the defendant by Mr Pang in mitigation.

Charge 1, 4 and 5

20.The proper starting point for sentence in a case of non-domestic burglary is 30 months’ imprisonment where there are no aggravating or mitigating features: R v Wong Man, unreported, CACC  372/1992.  A lower starting point of 18 months was adopted in the case of opportunistic burglary: HKSAR v Cheung To Ming, CACC  406/2005.

21.The starting point can be adjusted upwards if there are aggravating features such as: (i) the offence is carefully planned and skillfully executed involving the use of heavy instrument or equipment; (ii) the offence is committed by two or more people; (iii) the offence targets at substantial premises and involves substantial properties; (iv) the offender has previous convictions, particularly previous conviction of similar nature, and (v) the offender commits multiple offences: HKSAR v Cheung Wai Kai, CACC 338-339/2007.

22.For Charge 1 and Change 4, Mr Pang submitted that the two burglaries were of the opportunistic nature, as the defendant was able to walk into those premises easily due to their respective roller shutters being half-open. 

23.As to Charge 5, Mr Brook for the prosecution has very fairly drawn to the attention of the court and the defence that the cleaner had left the door of the café  unlocked and one could spot that from the outside via the window of the café, although the said facts have not been reflected in the summary of facts.  In other words, the defendant just needed to push the door open to enter the premises without the need of breaking in.  On this basis, Mr Pang again urged me to treat this burglary as an opportunistic one.

24.Despite the defendant’s appalling criminal record, only one of his convictions related to burglary which was more than 16 years ago.  The three burglaries in this case took place either early in the morning or in the afternoon.  The burglary in Charge 1 and the two burglaries in Charge 4 and Charge 5 were about two months apart.  I don’t consider the said evidence to suggest that he is a professional burglar.  Nor do I find him a serial burglar, although, in my view, he might have been on the verge of becoming one if he had not been intercepted or arrested by the police shortly after the incident in Charge 5.

25.Having regard to the fact that the defendant was able to walk into the two premises in respect of Charge 1 and Charge 4 easily as the roller shutters were left half-open, I am prepared to accept that the two burglaries were opportunistic and adopt a starting point of 18 months for each of the two offences.  Unlike Charge 1 and Charge 4, the defendant had to push the door open to enter the premises involved in Charge 5.  However, as one could see the door being unlocked through the window of the café from the outside and without any evidence regarding the physical settings of the café, I cannot rule out the possibility that the defendant might have by chance spotted the door being unlocked and thus took advantage of the opportunity.  I tip the balance in favour of the defendant and treat this burglary as an opportunistic one and adopt a starting point of 18 months.  

26.Since the defendant committed the three burglaries just a few months after his release from prison and given his appalling criminal record, I consider them as aggravating factors and therefore enhance the starting point for the three charges by 3 months to 21 months. 

27.The chronology of this case provided by the prosecution showed that on 22 July 2016 the defendant was arrested for Charge 2 and Charge 3 (the theft charges) and released on police bail.  He was charged for the two offences on 7 October 2016 and appeared at the Kowloon City Magistracy on 14 October 2016.  On 4 August 2016, the defendant was arrested for Charge 1, Charge 4 and Charge 5 (the three burglary offences) and detained to appear at the Kowloon City Magistracy on 6 August 2016.  On 14 October 2016, all 5 charges in the two Kowloon City Magistracy cases were consolidated into the present case.  On 25 November 2016, the case was transferred to the District Court.

28.It is clear from the chronology that the defendant committed Charge 4 and Charge 5 while he was on police bail for Charge 2 and Charge 3 (the two theft offences). The respective values of the properties involved in Charge 4 and Charge 5 are not insignificant.  I consider these matters as aggravating factors and therefore further enhance the starting point for Charge 4 and Charge 5 by 3 months to 24 months. 

29.As the defendant is a repeat offender of theft and has a previous conviction of burglary, I am skeptical about the defendant’s assertion of being ignorant of his acts amounting to burglary.  Financial pressure is not a reason for offending: R v Kwok Yau Fat, CACC 537/1996.  Regarding the defendant’s concerns for his father, it is well established that the care the parents may need is not a good ground for reducing sentence and if one is concerned about one’s parents, one should avoid getting involved in this sort of offences in the first place: R v Wong Wai Lun, CACC 512/1996. 

30.Apart from the defendant’s guilty plea, I don’t see any other mitigating factor justifying any further reduction in respect of all three charges.  Giving the defendant full credit for his guilty plea, I therefore pass a sentence of 14 months’ imprisonment on Charge 1 and 16 months’ imprisonment on each of the Charge 4 and Charge 5.

Charge 2 and 3

31.CCTV footages concerning these two charges were played in court.  In both incidents, when the respective victims were concentrating on their video games, the defendant was seen using his foot to pull the respective victims’ properties out from the space either under the victim’s seat (Charge 2) or in between the seats of the victim and the neighbouring player (Charge 3).  Furthermore, for the incident in Charge 2, the defendant was seen to have waited for a person to walk past him before pulling the backpack out with his foot.  For charge 3, the defendant was seen standing behind the victim and looking around to ensure that no one was walking past or watching him before stealing the handbag.

32.In my view, the defendant’s actions as seen in the CCTV footages of both incidents clearly demonstrated that on each occasion it was a deliberate and planned act on the defendant’s part to take the victim’s property when the victim was not paying attention to his/her property.  Further, taking into account that these offences took place in public places, the significant degree of inconvenience caused to the victims and the invasion of privacy, I find that the severity of these two offences is akin to pick-pocketing: HKSAR v Ng Ah Shan, CACC 358/2013.  Mr Pang fairly accepted this to be the case.

33.For a case of theft by pick pocketing, the starting point of 12 months to 15 months imprisonment after trial for a first offender is appropriate.  The starting point can be increased if there exist aggravating features including: (i) presence or use of a weapon (such as a razor or blade used to cut open, say a handbag, or intended to use on the victim); (ii) the offence is committed in a place where the public is at particular risk such as crowded places like the MTR, racecourse or crowded shopping areas; (iii) the accused is acting in concert with others and a substantial increase in sentence may be called for if the accused is part of an organized and professional ring of thieves; and (iv) the accused is a repeat or persistent offender: HKSAR v Ngo Van Huy, CACC 107/2004.

34.The defendant has one previous conviction of pick-pocketing which was more than 12 years ago. I don’t treat it as an aggravating factor.  A starting point of 12 months is adopted in respect of both charges.  Nevertheless, in view of his appalling criminal record, particularly, theft related convictions and the present offences were committed just a few months after his release from prison, I find it appropriate to enhance the starting point of both charges by 3 months to 15 months.  The only mitigating factor is his guilty plea.  I give him a one third discount and sentence him to 10 months imprisonment in respect of each of the two theft offences. 

35.If burglary offences are committed in different premises against different victims on different dates, consecutive sentences should be imposed: AG v Lui Kam Chi [1993] 1 HKC 215. 

36.In fact, all 5 charges are separate offences.  However, bearing in mind the totality principle, I consider a global starting point of 51 months to be appropriate for all 5 charges.  After the discount of guilty plea, the overall sentence becomes 34 months.  I am satisfied that a total of 34 months is sufficient to reflect the overall criminal criminality of the defendant.  Hence, I order 5 months of the sentence of each of the charges 2 to 5 to run consecutively to the sentence of each other and Charge 1, the remainder to run concurrently, resulting in a final total sentence of 34 months.