HKSAR v. Ng Chi Wai

DCCC 84/ 2018

[2018] HKDC 686

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 84 OF 2018

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to two counts of “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210 (charges 1 and 3) and one count of “Going equipped for stealing”, contrary to section 27(1) of the same Ordinance (charge 2).

Charges 1 and 2

2.The premises as particularized in charge 1 (“Premises 1”) was used as a work studio by Mr Lo and his friends.  Premises 1 had a wooden door and an iron gate with lock. 

3.On 7 July 2017 at 2pm, Mr Lo locked the gate of Premises 1 and left.  On 8 July 2017 at around 10:20pm, he returned to Premises 1 and discovered the iron gate was open.  After he entered Premises 1, he discovered the door of the leisure room was ajar with light on.  He believed someone had entered Premises 1. 

4.When Mr Lo opened the door of the leisure room, he saw the defendant inside.  The defendant was kneeling on the floor looking for something in a carton box.  Mr Lo asked the defendant what he was doing.  The defendant said he was looking for food and someone. 

5.Mr Lo called the police.  The defendant intended to leave and there was struggle between the two of them. 

6.Later on, the defendant took out a plug and put it on the floor.  Mr Lo identified this to be his property.  This plug worth about HK$100.  A pair of labour gloves was found on the floor which did not belong to Mr Lo.

7.At 10:31pm on the same day, PC 21036 arrived at Premises 1.  The officer conducted investigation on the defendant.  The defendant said he pulled the gate, pushed the wooden door and entered the premises.  He did not explain why the plug was in his possession.  When the officer demanded the defendant to produce his ID card, the defendant replied that his ID card was in a bag placed above 14^th floor near the door of the roof.

8.The defendant then brought the officer to get his bag.  Upon search, the defendant’s ID card and a wooden box containing 4 tweezers and 5 screwdrivers were found inside the bag.  Under caution for the offence of “possession of instruments for unlawful purpose”, the defendant stated that his bag was upstairs and he took the officer to find it.

9.In a subsequent interview, the defendant admitted under caution that he entered Premises 1 and took the plug.  When the owner of Premises 1 returned, he put down the plug.  Regarding the tweezers and screwdrivers, he brought them out of his home on 7 July 2017.  The tools were used to repair his watch inside his bag.

10.Police did not find any watch inside the defendant’s bag. 

Charge 3

11.A Mini Storage known as “Profit Storage” is situated in the address particularized in charge 3 (“Premises 2”).  To enter Premises 2, one has to use a card at the front door.  The back entrance of Premises 2 was made up of two wooden doors and an iron gate.  There was a latch but no lock on the iron gate.  Premises 2 was partitioned into independent storage rooms.  At the ceiling, each individual storage room was separated by a wire mesh.

12.In May 2017, Mr Lee rented room KT311 of Premises 2 to store his cameras, camera lenses, laser discs and photographs.

13.Ms Ng, staff of Premises 2, would patrol the back entrance every week. At the end of October 2017, she checked the back entrance and did not notice a problem. The latch on the iron gate was not damaged at that time.

14.On 29 October 2017 at around 3pm, Mr Lee went to KT311 to get his laser discs.  He did not notice any anomaly and he used a padlock to lock the room.

15.On 3 November 2017 at around 6:30pm, Mr Lee went to KT311.  After he unlocked, he discovered the room was ransacked.  As he was in a hurry, he did not report to the police.

16.On 6 November 2017, Mr Lee checked KT311 and found two camera lenses missing.  The total value of the 2 lenses is about HK$11,000.  He discovered the wire mesh at the ceiling was loosened.  He reported to the police.

17.Police arrived and seized a wooden rod on the floor of room KT310, an iron rod, an iron latch, a piece of paper with Mr Lee’s writing on the floor of the back entrance of Premises 2. 

18.CCTV camera captured the defendant appeared inside Premises 2 on 2 November 2017.  It showed he tampered with the locks on the door of many rooms including KT310, KT311 and went in through the doors or by climbing up a ladder.  It was recorded that he went into KT310 at about 3:01pm and KT311 at about 3:49pm.

19.The defendant was arrested on 10 November 2017.  Upon search, a head lamp and a black lens cap was found in the defendant’s bag. Under caution, the defendant admitted he went to Premises 2 on 2 November 2017 and stole two camera lenses from one of the storage rooms and sold it for HK$500.  He had spent all the money. 

20.In a subsequent video-recorded interview, the defendant admitted under caution that 1-2 weeks before 2 November 2017, he went to the building in which Premises 2 was situated and saw the back door not closed.  On 2 November 2017 at about 11pm, he entered the building via back stairs and got into Premises 2.  Before entering, he took a ladder and a wooden rod.  As the iron gate of Premises 2 was not closed, he pulled it open.  He climbed the ladder and went into one of the rooms.  He used a lighter to burn and damage the plastic wire that tied up the wire mesh and used the wooden rod to separate the wire mesh. He used the same method to climb into the next room and stole two camera lenses. During the burglary, he wore the head lamp. 

Mitigation

21.The defendant is aged 34 and lived with his parents.  Before his last imprisonment, he worked as a transportation worker earning HK$12,000 per month.  He has 17 previous conviction records, 10 of which relate to dishonesty.  Prior to the present case, he has no previous conviction for burglary.

22.It was submitted the usual starting point for burglary of non-domestic premises of 2.5 years is applicable to the two offences of burglary.  For the first charge, it was submitted that the alarm caused to the victim was minimal and the amount stolen was small.  The court was urged not to enhance the starting point for any aggravating feature.  In respect of charge 3, it was submitted that no alarm was caused and no damage was caused.  The defendant was sorry for what he did but he had no money to compensate the victim for the loss.  For the second charge, it was submitted that it arose from the same set of circumstances as the first charge and the court was urged to impose concurrent sentence for the first and second charges.  The court was also urged to consider the totality principle and impose a lenient sentence on the defendant. 

Sentence

23.There is a well settled sentencing guideline for burglary of non-domestic premises.  According to the guideline, the starting point for a single burglary of non-domestic premises committed by a first offender of full age where there is no aggravating or mitigating feature is 2.5 years’ imprisonment.

24.When considering sentence, I note that the defendant has previous conviction records relating to dishonesty, however, he has no previous conviction for burglary.  In the circumstance, I will not enhance the starting point in the light of his previous conviction records. 

25.In respect of charge 1, I accept the alarm caused to the victim was minimal, the stolen property was recovered and there are no aggravating features justifying an enhancement of the starting point.  In the circumstance, I adopt 2.5 years as the starting point.  Given the defendant’s guilty plea, the sentence is reduced to 20 months’ imprisonment.

26.For charge 2, the equipment found is a simple set of equipment.  I consider the appropriate starting point is 9 months’ imprisonment.  It is reduced to 6 months for the guilty plea. 

27.For charge 3, in the absence of aggravating features, I consider the appropriate starting point to be 2.5 years.  The sentence is reduced to 20 months’ imprisonment for his guilty plea. 

28.All the offences committed by the defendant are entirely separate and distinct offences.  In theory, their sentences should run consecutively. Taking into consideration of the totality principle, I am satisfied that a total sentence of 30 months is sufficient to reflect the criminality of the defendant’s act.  For charge 2, as it arose from the same circumstances as charge 1, its sentence is to run concurrently with the sentence for charge 1. For charge 3, 10 months of the sentence is to be served consecutive to the sentences for charges 1-2, making a total sentence of 30 months’ imprisonment. I hereby sentence the defendant to 30 months’ imprisonment.