HKSAR v. Lam Nam and Others

DCCC 177, 508, 675, 848 & 938/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 177, 508, 675, 848 & 938 OF 2016

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Reasons for Sentence

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Charges

1.D1, D2, and D3 plead guilty to the respective charges as follows:

a) 1^st Charge against D1 and D2 for burglary on 10 December 2015 of a commercial unit;

b) 2^nd Charge against D3 for burglary on a day unknown between 24 and 29 March 2016 of a residential unit;

c) 3^rd Charge against D1 for handling stolen goods on about 29 March 2016 pertaining to the residential unit under the 2^nd Charge;

d) 4^th Charge against D3 for burglary on 17 April 2016 of a residential unit;

e) 5^th Charge against D3, together with a person unknown, for burglary on 7 May 2016 of a residential unit;

f) 6^th Charge against D2 for failing to surrender to custody without reasonable cause.

Facts for 1^st Charge

2.On 9 December 2015, the shop-owner of Sweet Garden located at Ground Floor, 88 Lai Chi Kok Road, Mong Kok locked up the shop before leaving in the afternoon.  She kept a box of 8 cans of Coke in the fridge, among other property, in her shop.

3.In the late hours on the same day, the police going past a shop on the ground floor of Lai Chi Kok Road found the door of the roller shutter half opened but the lights inside were off.  There was no sign of anyone trespassing or ransacking.  They took up an observation post to lay ambush.  An hour later, D1 and D2 walked towards the shop.  D1 entered the shop whilst D2 stood outside and looked around.  Shortly afterwards, D2 also entered.  After one minute, D2 came out, followed by D1 holding a box of 8 cans of Coke.  They tried to flee police interception but were arrested. 

4.D1 admitted to the police that he had entered to see what could be taken.  He found no cash and so took away the Coke.  

5.D2 admitted to the police that he had found the door of the shop not properly closed, he first went to have dinner with his girlfriend, afterwards he called D1 to meet up in the vicinity, and he acted as the lookout when D1 entered to steal. 

Facts for 2^nd and 3^rd Charges

6.On 24 March 2016, the occupant locked up his flat at 5^th Floor, 166 Tai Po Road, Sham Shui Po before leaving. 

7.In the early hours on 29 March 2016, the police intercepted D1 on Tai Po Road near Shek Kip Mei Street for investigation and search.  D1 was carrying a black bag of property consisting of miscellaneous items, including stamps and first day covers worth HK$20,000, some personal keepsakes, and letters addressed to an address on Tai Po Road.  He first claimed to have purchased everything at Ap Liu Street for $10,000.  He was arrested and cautioned. 

8.The police went to the said address and found the locks of the front door and the rear door broken.  Repair cost was to be HK$2,800.  The occupant identified all items retrieved in the black bag as his own property. 

9.The police found a consumed paper packet drink in the flat.  The contents bore D3’s DNA upon forensic examination. 

10.When arrested on about 8 September 2016, D3 admitted to the police that he had burgled the flat. 

Facts for 4^th Charge

11.In the afternoon on 17 April 2016, the occupant of the flat at a rooftop on Portland Street, Yau Ma Tei locked up her flat before leaving.  She did not close the toilet window. 

12.In late evening, she returned only to find the flat ransacked.  Her watches, handbags, cash, and other personal accessories, in total worth over HK$15,000, were missing from her bedroom.  There was a can of drink taken out from the fridge and consumed.  The contents bore D3’s DNA upon forensic examination. 

13.When arrested on about 8 September 2016, D3 admitted to the police that he had entered the flat to steal.  He had consumed that drink in the flat when thirsty.  He had sold the stolen property and spent all the proceeds. 

Facts for 5^th Charge

14.In the late morning on 7 May 2016, the resident of a flat opposite to a rooftop flat on Canton Road, Yau Ma Tei saw 2 males, later known to include D3, moving many items from a white cabinet to the adjacent rooftop.  They began to take the moved items away.  She used her mobile phone to video-record the incident and made a report to the police.  The police arrived to stop D3 from fleeing the scene with 2 bags and a suitcase.  The contents were identified by the occupant of the rooftop flat as originally stored in his white cabinet there.  Those were his repair and renovation tools, gramophone records, personal accessories and miscellany, in total worth about $10,000. 

15.When arrested on about 8 September 2016, D3 admitted to the police that he had entered the flat to steal. 

Facts for 6^th Charge

16.D2 failed to answer court bail to attend the District Court hearing of 12 August 2016.  A warrant of arrest was issued.  He was arrested on 27 October 2016. 

Mitigation for D1

17.D1 is 49 years of age.  He has 1 previous record for burglary in 1982 (the year of sentence, same as hereinbelow), 1 for theft in 1997, and 1 for going equipped for stealing committed on 21 June 2015, which resulted in a police bail pending court proceedings.  In the course of the police bail, he committed the offences the subject-matter of the 1^st and the 3^rd Charges here. It is an aggravating factor in his sentence. 

18.Mr. Lee puts forward 4 cases as examples of departure from the sentencing guidelines for burglary involving unsophisticated entry and property of small value (The Queen v Lee Wai-ling HCMA 717/1988, HKSAR v Chan Sin-ting (陳倩婷 , transliteration of the defendant’s name in that judgment in Chinese) HCMA 710/2014, HKSAR v Law Tin Yam CACC 258/2010, HKSAR v Cheung To Ming CACC 406/2005).

19.Mr. Lee submits that D1 was an opportunistic burglar walking into the shop through a half-open door to steal 8 cans of Coke.  I agree with this submission. 

20.His fifth case is HKSAR v Yau Pak Chun (a judgment in Chinese) where the Court of Appeal applies the 9 aggravating factors for sentencing a handler of stolen property outlined in R v Bernard Webbs [2002] 1 Cr App R (S) 22 82 as follows:

(1) The proximity between the predicate offence and the handling (possibly in terms of location, timing, the handler’s prior incitement or encouragement for the predicate offender to commit the predicate offence, or making available a safe custody or disposal);

(2) The seriousness of the predicate offence;

(3) The value of the property, including sentimental value, from the owner’s point of view;

(4) Residential premises being burgled;

(5) The complexity or sophistication of the handling;

(6) Lucrative reward for the handler;

(7) Handling regularly or providing channels to dispose of the property;

(8) Handler resorting to violence or exploitation to make juveniles commit the predicate offence or to make drug addicts steal to pay for the drugs;

(9) Handling whilst on bail for a previous matter.

21.Factors (1), (2), (3), and (4) are relevant to our case.  That is to say, there are only 5 days between the predicate offence and the handling.  Burglary is a serious offence.  The property has both monetary and sentimental values.  It involves residential premises.  

22.In his sixth case, HKSAR v Wong Ming Po CACC 197/2016, a judgment in Chinese, the defendant was wearing a T-shirt received from the burglar 2 weeks after the burglary.  The Court of Appeal released the defendant who had already served 6 months in jail.  He was convicted after trial. 

23.The last case on his list is HKSAR v Pang Wai Keung CACC 460/2005.  It is an appeal to seek an extensive overlapping sentences for two burglaries that could have been consolidated for sentencing but were not.  This case is not relevant to D1 as both of his charges have been consolidated and are now before me.

Mitigation for D2

24.D2 is 41 years of age.  He has 2 records for theft in 2005 and 2007 respectively.   

25.Mr. Lau refers me to the case of HKSAR v Kwok Wing Kam, a judgment in Chinese CACC 394/2010.  The defendant stole a packet of lemon tea when visiting the premises.  There was no ransacking.  The Court of Appeal reduced the sentence to 10 months after the one-third discount for pleading guilty to burglary. 

26.In HKSAR v Wong Chi Hung CACC 300/2010, the defendant failed to answer court bail and was arrested for it less than 4 weeks later.  The Court of Appeal approved a starting point of 3 months. 

Mitigation for D3

27.D3 is now 42 years of age.  He has 7 records for theft, all far back in 2005.  He was married but is now divorced. 

Sentencing D1 – D3

28.The prosecution has no dispute that D1 – D3 have offered to plead guilty at the earliest court hearing and are entitled to one-third discount. 

29.However, D2 shall not get such full discount on the ground of his failing to surrender to custody without reasonable cause.  The Court of Appeal has repeatedly confirmed that the guilty plea tendered when brought back after absconding was necessarily a late plea (HKSAR v Poon Chum Kong CACC 228/1999; HKSAR v Lo Shiu Wah CACC 399/1999; HKSAR v Ko Chun Hung CACC 71/2007; HKSAR v Lam King Yin CACC 328/2012; HKSAR v Lo Kam Fai [2016] 2 HKLRD 308). 

30.In HKSAR v YEUNG Kwok-sang CACC 4/2006，the Court of Appeal states that the 2½ years' starting point for burglary of non-domestic premises is adopted where there are elements of planning for the burglary.  Where the case involved an opportunistic burglar, for example, that a burglar entered into an open premises and stole the things there, the starting point can be adjusted downwards, as in HKSAR v Sim Ka Wing CACC 450/2000. 

31.I take 15 months as the basic starting point for the 1^st Charge, of burglary, as against D1.  It is to be aggravated by 3 months due to his commission of this offence whilst on police bail for a case of going equipped for stealing. One-third off from this actual starting point of 18 months, is 12 months. 

32.I take 2 years as the basic starting point for the 3^rd Charge, of handling, as against D1.  It is to be aggravated by 3 months due to his commission of this offence whilst on the said police bail.  After the one-third discount, the sentence is 18 months. 

33.I order 3 months of the 1^st Charge to be consecutive to the 18 months of the 3^rd Charge.  D1’s total sentence is 21 months.

34.I take 18 months as the starting point for the 1^st Charge, of burglary, as against D2.  After the slightly less than one-third discount, the sentence is 13 months. 

35.I take 3 months as the starting point for the 6^th Charge, of failing to surrender to custody, as against D2.   After the one-third discount, the sentence is 2 months. 

36.I order 1 month of the 6^th Charge to be consecutive to the 13 months of the 1^st Charge.  D2’s total sentence is 14 months. 

37.I take 3 years as the starting point each for the 2^nd, the 4^th, and the 5^th Charges, of burglary of a residential unit, as against D3.  After the one-third discount, the sentence is 2 years each. 

38.D3 is to serve the 2 years for the 2^nd Charge whereas 4 months of the 4^th and the 5^th Charge each shall be consecutive to all charges.  The total sentence is 2 years and 8 months.