HKSAR v. Lo Kai Hong

DCCC 424/2018

[2018] HKDC 1248

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 424 OF 2018

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REASONS FOR SENTENCE

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1.Defendant Lo Kai Hong pleaded guilty before me to two charges of Burglary, both contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.Particulars of Charge 1 are that he, on 11 September 2017, in Hong Kong, together with another person unknown, having entered as trespassers part of a building known as Room No 12, “Oi Suen Guest House”, Room 812, Sincere House, No 83 Argyle Street, Mong Kok, Kowloon, stole therein one smartphone, one purse, cash of $30,000 Hong Kong currency, one Hong Kong Identity Card, one Home Visit Permit, 7 credit cards and one bank card.

3.Particulars of Charge 2 are that he, on 11 September 2017, in Hong Kong, together with another person unknown, having entered as trespassers part of a building known as the staff counter of “Oi Suen Guest House”, Room 812, Sincere House, No 83 Argyle Street, Mong Kok, Kowloon, stole there one watch.

Admitted facts

4.The facts admitted by Mr Lo may be summarized as follows.

5.PW1 (female, aged 63) was the owner of Oi Suen Guest House (“the Guesthouse”) located in Sincere House of Mong Kok.

6.In the evening of 10 September 2017, defendant Mr Lo and a female (“the Female”) approached PW1 and told her that they had no money and had no place to stay.  They asked for a free room.  After recording the Female’s identification card information, PW1 let them stay in Room 14 of the Guesthouse for the night.

7.The next morning, PW1 left Room 12 of the Guesthouse secured after spending the night there.  She placed the key to Room 12 in a cabinet of the Guesthouse.

8.Sometime later that morning, she left the Guesthouse for about 1 ½ hour.  When she returned, she could not find the key to Room 12.

9.She went to check Room 14 where she found:-

(a) The key to Room 12; and

(b) Her two handbags which she had earlier left in Room 12.

10.She found the following items missing from her two handbags:-

(a) One smartphone worth about $2,000; and

(b) One purse worth about $200, which contained:-

(i) $30,000;

(ii) One HKID card;

(iii) One home-visit permit;

(iv) 7 credit cards; and

(v) One bank card.

11.A watch, worth about $150, was also found missing from a drawer at the staff counter of the Guesthouse.

12.CCTV footage shows that at about 9:43 am to 9:46 am (CCTV time):-

(a) Mr Lo searched a drawer at the staff counter of the Guesthouse, and passed the said watch to the Female;

(b) The Female spotted a CCTV camera and tried to cover the camera;

(c) The Female left the Guesthouse; and

(d) Mr Lo took the two said handbags into Room 14, and later left the Guesthouse.

13.On 24 November 2017, the police arrested Mr Lo.

14.The police searched Mr Lo’s residence and with his consent seized a T-shirt.

15.In a cautioned interview, Mr Lo stated:-

(a) He had seen PW1 place her handbags in her room;

(b) On the material day, after PW1 had left the Guesthouse, he and the Female ie his girlfriend searched for the key to PW1’s room and eventually found it;

(c) He entered PW1’s room and took the handbags from there into his room;

(d) He took money, a telephone and a purse from the handbags while the Female acted as a lookout;

(e) He and the Female had spent the money and threw away the telephone, the purse and some cards; and

(f) He was wearing the T-shirt seized by the police when he stole the items.

16.At an identification parade, PW1 positively identified Mr Lo.

Criminal record

17.The agreed criminal record shows that Mr Lo has 3 previous convictions including two thefts sentenced respectively in 2016 and 2017 to short prison terms.

Antecedents

18.The antecedents statement (agreed save as to the education aspect) shows that Mr Lo is aged 17 (16 at the time of the offences); that he was educated to F4 level; that he was last discharged from prison on 1 September 2017; that he is single and lived with his family in Aberdeen.

Mitigation

19.Mr Terence To of solicitor mitigated on behalf of Mr Lo.

20.The following is a summary of the mitigation submissions.

21.Mr Lo was actually educated to F2 only.  After he ceased education in 2016, he enrolled in a course in hairstyling provided by Vocational Training Council but he quitted after a few weeks.  He then became unemployed.  His whole family relies on social security payment.  His parents divorced when he was 5 to 6 years old.  He did not have contact with his father ever since.  His mother re-married and later gave birth to a son (now 6) and a daughter (now 4).  Before being remanded, Mr Lo resided with his grandmother, mother, and the two step-siblings.  His step-father died 2 years ago of liver cancer. Grandmother is in court to give Mr Lo support.

22.Mr Lo frankly admitted the offences to the police and pleaded guilty and asks for 1/3 discount.

23.Mr To asks the court to treat the two offences as one and to impose concurrent sentences.  Regarding breach of kindness (not really of trust) extended by the aged owner of the Guesthouse, Mr To submitted that Mr Lo was not as mature as most of us and he looked at it with a simpler mind.

24.Mr To submitted that when Mr Lo entered the Guesthouse, he did not intend to steal.  So there was no premeditation.  Mr To further submitted there was no forcible entry.

25.Mr To submitted 3 authorities, namely R v Wong Man [1993] 1 HKC 80, HKSAR v Shahzad Saleem, DCCC 498/2017, and HKSAR v Suen Chi Wai, CACC 90/2015.

26.Mr To had no submissions to make despite invitation on the aggravating factor of two persons acting in concert.

27.Lastly, Mr To urges the court to be as lenient as possible in view of Mr Lo’s young age.

Training Centre Report

28.Because of Mr Lo’s young age, a Training Centre Report was called for.

29.The report says that Mr Lo is mentally and physically fit for detention in a Training Centre and he is considered suitable for detention in a Training Centre.

Further mitigation after TC report has been obtained

30.The TC report has been read and explained to Mr Lo who acknowledged the contents.  He is prepared to accept and indeed urges the court to adopt the recommendation made.

31.The report goes into some details of Mr Lo’s unfortunate upbringing which explained what he has done in the past.  Mr Lo needs more guidance and rehabilitation rather than punishment.  In the centre, Mr Lo will be offered the chance to study and learn some skills which will be beneficial to him.

Sentence

32.I have considered the mitigation submissions made by and the authorities submitted by Mr Terence To.

33.I have seen the photographs submitted by the prosecution with no objection from the defence.

34.This case has two aggravating features:-

(a) Joint enterprise; and

(b) Breach of trust (see HKSAR v Pakit Joni, CACC 10/2013) in that PW1 out of her benevolence allowed Mr Lo and her girlfriend to stay the night for free which compliment was only returned by the couple committing two burglaries at her place.

35.However, because of Mr Lo’s young age and the positive recommendation made in the Training Centre Report, I am prepared to be lenient to Mr Lo.  I am satisfied that it is in the interest of the community and that having regard to his character and previous conduct, and to the circumstances of the offences, it is expedient for his reformation and for the prevention of crime that he should undergo a period of training in a training centre.

[Mr Lo, please stand]

36.I therefore sentence Mr Lo to detention in a training centre for each of the two charges, with the sentences to be served concurrently with each other.