HKSAR v. Lo Chi Chung and Another

DCCC 1096/2017

[2018] HKDC 748

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1096 OF 2017

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Reasons for Sentence

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Charges and facts

1.D1 faces 2 single charges against himself (1^st and 3^rd Charges). There is a joint charge with D2 (2^nd Charge).  They both plead guilty to their respective charge(s).  All 3 burglaries were committed on the premises of Ten Million Japanese Restaurant (“the Restaurant”), which was located at Shop No. 1 Ground Floor, Chuk Bun Building, 1 Tat Fai Path, Yuen Long, N.T.  It opened from noon to 2330 h and had 3 entrances, including a glass side door.   D1 was arrested just after he committed the third burglary, which pertained to the 3^rd Charge.  

2.D1 had been a waiter at the Restaurant before he was dismissed by the manager Mr. LUNG before 4/10/2017, the date of the first burglary. 

3.The 1^st Charge - Mr. LUNG returned to the Restaurant on 4/10/2017 at noon to find the glass side door (“the Side Door”) and the cashier machine inside both prized open.  There was cash of $1,500 missing from the cashier machine.  There were traces of attempt to prize open the safe inside (“the Safe”).  Repair costs of $1,200, $500 and $3,000 had to be incurred for the cashier machine, the lock of the Side Door, and the Safe respectively.  There was CCTV installed but the recording function was not operating at that time. 

4.The 2^nd Charge – In the morning on 6/10/2017 the Restaurant was found to be burgled.  The lock of the glass side door was prized open.  The cashier machine was searched.  A Lenovo mobile phone (E1) worth $2,000 and cash of $100 in a tips box next to the cashier machine were both missing.  Repair costs of $500 and $3,000 had to be incurred for the lock of the Side Door and the Safe respectively.  CCTV captured D1 prize open the lock of the glass side door and entered the premises with D2.  Both wore gloves and facemasks.  D1 prized open the cashier machine and took money from the tips box into his rucksack.  He took out an electric drill from his rucksack and used it to open the Safe but was unsuccessful.  D2 assisted him by holding a mobile phone as flashlight and handing over a tool that looked like a screwdriver and stabilizing the Safe for drilling.  They left the premises after 14 minutes. 

5.The 3^rd Charge – In the small hours on 9/10/2017 PC14899 was on patrol when he saw D1 damage the lock of the glass side door and break into the premises.  The police officers hid nearby and intercepted D1 upon his exit from the premises. D1 had on him the Lenovo mobile phone (E1) and a 20 cm long screwdriver (E2).  Repair costs of $500 had to be incurred for the lock of the Side Door.   CCTV captured D1 prize open the Side Door and entered the premises by using the flashlight of a mobile phone.  He left the premises after 6 minutes. 

6.Subsequent enquiries – D1 admitted the 3 burglaries.  He had used up the money stolen.  D2 and he had been friends for 2 to 3 weeks.  On the second occasion he had asked D2 to accompany him to get something from the premises that day.  He had spent the $100 stolen money to buy cigarettes for his own consumption.  His residence was searched.  There a rucksack and an electric drill were found relating to the burglaries.  

7.D2 was arrested on 10/10/2017.  He admitted the second burglary.  D1 asked him to accompany him to the premises in the early morning.  D1 told him that it was to take revenge as D1 was unhappy for being dismissed from employment there.  He saw D1 prize the lock of the Side Door.  They entered the premises.  D1 tried to prize open the Safe by the electric drill.  After they left the premises they went to 7-Eleven to buy cigarettes.     

Mitigation

8.D1 is now 19, of F. 2 education level.  His records are as follows:

(1) Theft of bicycle (PO 15 months, sentenced in 2/2014);

(2) Theft (PO 15 months, sentenced in 7/2014);

(3) Theft-type burglary x 9 (TC, sentenced in 10/2014).

9.Mr. Tsang informs me that his client D1 had felt gravely aggrieved for the dismissal as he was the only one dismissed as a result of an argument developed into some pushing and shoving with another colleague at work.  He wanted to take revenge on his employer by committing the offences.  He was released from TC in 6/2016 and failed to complete the 3-year supervision period with good conduct. Despite that, Mr. Tsang asks me to consider another TC order as the penalty for the present case.   

10.D2 is now 18, of F. 3 education level.  His records are as follows:

(1) Theft (shoplifting, sentenced to PO in 5/2012);

(2) Arson x 3 (sentenced to PO in 5/2012, extending the previous PO);

(3) Acting as MOTS (sentenced to a fresh PO in 3/2015);

(4) Breach of PO (revised sentence from PO to Rehabilitation Centre in 1/2016);

(5) USI x 5 (TC, sentenced in 12/2017, currently serving).

11.Ms. Hung informs me that the USI offences were committed before the present case of burglary.  She asks me to consider TC for his client D2.  I call for a TC Report.  The CSD intake officer recommends his detention in TC. 

Sentencing considerations

12.In R v Wong Man [1993] 1 HKC 80 the Court of Appeal suggests a starting point for non-domestic premises of 2 years 6 months for a first offender of full age. 

13.Section 109A of the Criminal Procedure Ordinance, Cap. 221, provides:

(1) No court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of opinion that no other method of dealing with such person is appropriate; and for the purpose of determining whether any other method of dealing with any such person is appropriate the court shall obtain and consider information about the circumstances, and shall take into account any information before the court which is relevant to the character of such person and his physical and mental condition.

(1A) This section shall not apply to a person who has been convicted of any offence which is declared to be an excepted offence by Schedule 3.

14.Burglary is not an excepted offence by Schedule 3. 

Sentencing D1 and D2

15.A fresh TC order for D1 can serve no purpose.  I consider prison the only viable option. 

16.D1 was the instigator in the second burglary.  I take a starting point of 3 years 3 months to reflect the basic starting point of 2 years 6 months for non-domestic burglary aggravated by 3 months for enlisting D2 to assist his ploy and another 6 months for his recidivism for theft and burglary.  After the one-third discount for timely plea of guilty the sentence is 2 years 2 months. 

17.D1 committed the 1^st and 3^rd offences alone.  I take 3 years as the starting point for 1^st and 3^rd Charges alike to reflect the basic starting point of 2 years 6 months for non-domestic burglary aggravated by 6 months for his recidivism for theft and burglary.  After the one-third discount for timely plea of guilty the sentence is 2 years each. 

18.I order one month of 1^st and 3^rd Charges each to run consecutively to the sentence under 2^nd Charge.  The overall sentence for D1 is 2 years 4 months. 

19.For the multifarious offences he had committed beforehand D2 shall be a marginal case for TC.  It shall be in the best interest of the community and himself if he can fully benefit from the regime of TC.  I make the order accordingly.  This order shall be concurrent with his current term there.