HKSAR v. Lam Kam Piu

DCCC 954/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 954 OF 2016

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REASONS FOR SENTENCE

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1.The defendant, Lam Kam Piu, pleaded guilty to a charge of burglary of commercial premises, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.The facts of the case are that the premises which were burgled are known as Video Com and situated at shops Nos 144‑145, 1st Floor, City One Plaza, No 1 Ngan Shing Street, Shatin, New Territories. Video Com is a digital shop, and Mr Wong Chun Kwok was the shop manager. He locked the metal gate and left the shop at 9:30 pm on 1 September 2016.  He returned at 11:30 am the next day and found the padlock to the metal gate missing, with signs of ransacking inside.

3.The CCTV footage in the shopping centre captured the defendant gaining entry by prising the lock of the shop.  He entered the shop and left with bulky baggage between 8:39 am and 8:45 am - that is around six minutes - on the offence date.

4.The defendant was captured by another CCTV to be entering Block 46 of City One Plaza about four minutes later.  I have looked at the still photographs of the CCTV footage. 

5.Mr Wong confirmed the missing property as those particularised in the charge.  The total value of the stolen property, including the cash, was HK$16,748.

6.I was told that the police arrested the defendant in his residence at Block 46 of City One Plaza in the early hours on 3 September 2016.  Some stolen properties were found therein, namely three computers hard disks and one set of anti-virus software, and cash HK$1,380.

7.The clothes and shoes worn by the defendant and a black bag with “Nike” logo used by him as seen in the CCTV footage were found inside the refuse room on the upper floor of the defendant’s residence.

8.The defendant led the police to retrieve the remaining stolen properties in a suitcase at the podium of Block 46.  The suitcase contained 47 pieces of stolen properties.  However, there are still three missing properties: that is, one scooter, a cash box valued at about 1,500 in total, and cash, 220.

9.Mr Wong identified all the recovered stolen properties as they all had the shop’s price tag on them.  In other words, the actual loss to the shop in monetary value was $1,720.

10.During the video-recorded interview, the defendant admitted, inter alia, under caution, that: (i) he burgled the shop and then walked back home; (ii) the master keys seized from his home belonged to him and were for opening locks; (iii) the cash, $1,380, three computer hard disks and one set of anti‑virus software found in his home were stolen from the shop; and (iv) the items found in the suitcase were also stolen from the shop.

Mitigation

11.The defendant is aged 38, married, with a son aged 3.  He had obtained a Bachelor degree in computer-related study.  He was brought to court on four occasions, with a total of six previous convictions, out of which five relate to dishonesty offences.

12.There are a number of letters put forward for the court’s consideration.  They are letters written by the defendant, his wife, his elder sister, and from the ministry officers.

13.In a nutshell, the defendant said that he was addicted to drugs when he was young.  He was remorseful after being released from the DATC, and he studied hard to obtain a degree in computer-related study in the Hong Kong University of Science and Technology.  He then earned a stable income.  However, he lost his job, and he had to face a lot of financial pressure.  He then took drugs and committed the present offence.

14.His wife and his elder sister said that the defendant was the sole breadwinner for the family, and asked for leniency for sentence.  The ministers said similar words.

Reasons for sentence

15.In passing sentence, I have carefully considered everything said and written on behalf of the defendant by Mr Tao.  Time after time the court has expressed clearly that being in financial difficulty is no mitigating factor for committing a crime, and family hardship is not a mitigating factor.  See HKSAR v To Yiu Cho [2009] 5 HKLRD 309.

16.The defendant said that he wanted to be sent to the drug rehabilitation centre.  However, the offence of burglary is a serious offence, and I consider that the appropriate sentence is imprisonment.

17.The present offence is not an opportunistic burglary.  There is a slight degree of planning in the sense that the defendant brought with him the master keys to open the lock of the burgled shop.

18.The correct starting point for non-domestic burglary is 2 years and 6 months, as laid down in R v Wong Man [1993] 1 HKC 80.  The starting point can be adjusted upwards if there are aggravating circumstances such as the offender has previous convictions, particularly previous convictions of similar nature.  HKSAR v Cheng Wai Kai CACC 338/2007 unreported.

19.The defendant has not committed burglary offences in the past, albeit he has committed dishonesty offences.  The theft was committed in 2012, for which he received a fine only, and the robbery was committed eight years ago.  I will show mercy by not increasing the starting point for the present offence.  In HKSAR v Gu Guolin CACC 25/2012 unreported, the Court of Appeal, at paragraph 18, said that:-

“The fact that the stolen property was recovered from the applicant and his co-defendants upon their arrests does not amount to a mitigating factor.”

20.There being no other effective mitigation, I shall reduce the sentence by one-third to reflect the customary discount for his plea of guilty.

21.The defendant is sentenced to 1 year and 8 months’ imprisonment.