HKSAR v. Lam Kwok Hung and Another

DCCC 954/2017

[2018] HKDC 1256

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 954 OF 2017

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Reasons for Sentence

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Charges

1.D1 and D2 plead guilty to the following charges:

(1) Burglary, against D1 (1^st Charge);

(2) Handling stolen goods, against D1 (4^th Charge);

(3) Burglary, against D1-2 (5^th Charge);

(4) Theft, against D1 (6^th Charge).

Facts for Charge 1

2.At all material times, the building situated on No. 7 On Kui Street Fanling, New Territories, Hong Kong was owned by Keiyip Engineering Company Limited (“Engineering Company”). The building included the office section (two floors) and a warehouse surrounding the office section with a back door connecting the two sections.  The building was rented to Powerkontrol Australia Limited (“Powerkontrol”) for office and storage purpose whilst Engineering Company rented a portion of the warehouse to store its products.

3.Powerkontrol owned a Toyota silver HIACE light goods vehicle bearing registration mark NK4893, which was parked inside the enclosed premises on No. 7 On Kui Street outside the building.

4.At 1 p.m on 2016-11-12, an employee of Powerkontrol secured the company before leaving.  At 8 a.m. on 2016-11-14, another employee of Powerkontrol arrived at the office and found a window of the company broken and signs of ransacking therein, HK$10,000 cash, 15 keys, a car key of the LGV NK4893 with its anti-theft device, two testing machines, two generators, some cables, a distance-measuring equipment and a jacket were missing from the building.  The LGV NK4893 parked at the Ground Floor outside the building was also missing.

5.At that time, an employee of the Engineering Company was alerted of the situation in the building.  Upon return and check, he found 1915 switches were missing from the warehouse section.

6.CCTV cameras installed at No. 7 On Kui Street captured the following events happened on 2016-11-13 and 2016-11-14, in which two males of unknown identities (both wearing surgical masks, gloves and sunglasses) came into the enclosed premises and also into the building:-

Time	Contents
4:46 pm	Two males climbed over the wall and entered the enclosed premises.
4:49 pm	Two males left the enclosed premises
5:02 pm	Two males entered the enclosed premises and the office section.
6:10 pm	Two males left the enclosed premises.
7:22 pm	Two males returned to the enclosed premises.
7:27 pm	Two males drove away the LGV NK 4893.
11:20 pm	The LGV NK 4893 was driven back to the enclosed premises.
11:30 pm	Two males entered the building through the warehouse door and took things out on multiple trips.  They loaded those things onto the LGV NK4893.
11:47 pm	Two males drove away the LGV NK4893.
2016-11-14 3:27 am	The LGV NK4893 was driven back to the enclosed premises.  Those two males again entered the building through the warehouse door.
3:33 am	Two males loaded things taken from the building onto the LGV NK4893.
3:51 am	Two males drove away the LGV NK4893.

Facts for Charge 4

7.Ms. LAW Pui-on was the shopkeeper of King Fut Yuen, a business held by H & V Trading Limited, selling Buddhist related items, located at Ground Floor, No. 1028 Canton Road, Mongkok, Kowloon, Hong Kong (“King Fut Yuen”).  At 7:30 p.m. on 2016-11-25, Ms. LAW secured the shop’s doors and windows before leaving.  At 7:45 a.m. on 2016-11-26, upon return, she found that the two locks of the front entrance were cut, the metal gate control box was prized open and the rear entrance was opened.  The shop was ransacked.  Ms. LAW found certain items in the shop were missing, including four gold ornaments.  A case was then reported.

8.CCTV of King Fut Yuen captured that two males were outside the shop premises and cut open the lock for the metal roller gate.  Then, one of them got inside whilst the other stayed outside to find a piece of paper to cover up the broken lock.  Then, the male inside the shop ransacked the shop and also went to the rear entrance. Subsequently, the other male that was outside the shop went inside through the rear entrance to ransack the shop.

Facts for Charge 5

9.Mr. LAI Kam-piu was the owner of Kam Kee Recycle Shop, located at Shop No. D1, Ground Floor, Tai Cheong House, No. 2 Hong Cheung Street, Sai Wan Ho, Hong Kong ( “Recycle Shop” ).  At 7 p.m. on 2016-11-28, he secured the shop before leaving.  He returned to the shop at 6:30 a.m. on 2016-11-29, and he found that the roller shutter was half open and prized.  A trolley of copper scrap (including around 30 bags weighing about 3 tons worth of about HK$114,000) were found missing from the shop.  The hard disc of CCTV recording system was missing as well.  He reported the case. After the police arrived to the scene, the trolley with some copper scrap inside was found at the opposite side of Tai Cheong Street but the said around 3 tons of copper scrap was still missing.

10.Upon investigation, it was known that Mr. KWOK Chun-wai drove past the Recycle Shop at the material time, and on the vehicle that he drove, there was a camcorder. He used to park his vehicle at the parking space outside Tai Shun Mansion which is in the vicinity of the Recycle Shop.  Mr. KWOK parked his vehicle at the parking space on the morning of 2016-11-28 and returned to get his vehicle at around 4:35 a.m. on 2016-11-29.  When he was about to drive past the Recycle Shop for the right turn, he found a silver LGV (Toyota HIACE bearing registration mark TN1716) parked outside the Recycle Shop.  A male, later known to be D2, came out from the Recycle Shop, and the driver on the silver LGV, later known as D1, made some room to let Mr. KWOK’s vehicle pass. The camcorder of Mr. KWOK’s vehicle captured that LGV TN1716 parked outside the offence location at 4:44 a.m. on 2016-11-29.

11.CCTV footages of Cross Harbour Tunnel and Western Harbour Crossing showed that LGV TN1716 had entered the Cross Harbour Tunnel (Kowloon side) at 3:54 a.m. on 2016-11-29, and subsequently it passed the toll of the Crossing in Western District at 5:08 a.m. on the same day.

12.Upon further investigation, it was revealed that at around 4:05 a.m. on 2016-11-29, police at a roadblock had intercepted a LGV bearing registration mark TN1716 during a snap check at Tsat Tsz Mui Road, North Point, Hong Kong.  Police officers intercepted LGV TN1716 and instructed the driver, later identified as D1, to drive to the checking area.  Then, officers instructed D1 and the only passenger on board, later identified as D2, to produce their proof of identity.  The particulars of D1-2’s identity proof were recorded, and police confirmed that the licence plate tallied with the Motor Vehicle Licence showing TN1716.  Having confirmed that the vehicle licence number TN1716 and both D1-2 were not wanted, the police allowed them to leave.

Facts for Charge 6

13.Mr. WONG Tang-fung owned a light goods vehicle bearing registration mark MH3719 (TOYOTA HIACE in silver color) since 2006.  Mr. WONG’s brother, Mr. WONG Tang-tat, was allowed to use the LGV MH3719 and has used such for work as a construction site worker for three years.

14.At around 10:30 p.m. on 2016-11-29, Mr. WONG parked the LGV MH3719 near road side, Liu To Road, Tsing Yi, New Territories, Hong Kong.  At 7:30 a.m. on 2016-11-30, he returned to get the car but found the middle window on the near side broken with its vehicle licence placed on the windshield, a charging cable, a set of amplifier with cable, a capacitor with one plastic holder, a pair of sunglasses and a pair of speakers with one USB cable missing.  A police report was made later on the same day.

15.Enquiry with Mr. CHEUNG Chi-ching, the shop owner of a car accessory shop, confirmed that a male had visited his car accessory shop at around 10 a.m. on 2016-11-30.  The male produced the vehicle licence of MH3719 and requested for making a set of number plates of MH3719.  After 15 minutes, Mr. CHEUNG finished making the number plates and handed over such to the male.  The male did not ask for installing the number plate and did not hand over any number plate to Mr. CHEUNG.

Arrest of D1

16.At 6:30 p.m. on 2016-12-05, police officer found a LGV bearing registration mark MH3719, which resembled the outlook of the LGV TN1716 in terms of the scratch marks on the vehicle, at Lai King Hill Road outside Yat King House, Lai King Estate, Kwai Chung, New Territories, Hong Kong.  An employee of Powerkontrol attended the scene and confirmed that the located vehicle was in fact LGV NK4893, upon checking with the vehicle registration document of the LGV NK4893.

17.The set of number plates MH3719 were recovered from the LGV, and they were later shown to Mr. CHEUNG, the shop owner of the car accessory shop, who confirmed that the number plates were made by him.

18.At around 7:53 p.m. on the same day, D1 showed up and walked to the driver seat with a car key.  At that time, police officer intercepted and arrested D1 after confirming his identity.  Under caution for the offence of burglary in Charge 5, D1 admitted that he had committed that offence with Ah Lap.

19.A search was conducted of LGV MH3719.  The following items were found and seized:-

(a) 6 screwdrivers

(b) 2 crowbars

(c) 3 pressurized scissors

(d) 5 saws

(e) A hammer

(f) Surgical masks

(g) One Cap

(h) Gloves

(i) One set of amplifier with cable (belonged to Mr. WONG Tang-fung in Charge 6)

(j) One capacitator with one plastic holder (belonged to Mr. WONG Tang-fung in Charge 6)

(k) One pair of speakers with one USB cable (belonged to Mr. WONG Tang-fung in Charge 6)

20.DNA samples were lifted from the steering wheel and the hand brake and the gear stick.  After examination with the above items and other seized items, it was found to be D1’s DNA on the steering wheel, the hand brake, gear stick, inside a plastic bottle, a steering wheel cover, and probably a rucksack and a bag; and to be D2’s DNA on a screwdriver and a bag.

21.A house search was conducted of D1’s home at Room 524, Yat King House, Lai King Hill Road, Kwai Chung, New Territories, Hong Kong. Four gold ornaments, which confirmed to be belonging to H & V Trading Limited in Charge 4, were recovered.

22.In the cautioned video-recorded interviews, D1 admitted that:-

In relation to Charge 1

(1) At the material time, he took the MTR from Cheung Sha Wan at around 1 a.m. on the day of offence with D2. They took train to Tai Po Market, and then walked to Fanling.

(2) At the vicinity of the offence location, D2 climbed over the wall to enter the enclosed premises and opened the entrance for him. Then D2 broke the window to enter the office section to gain entry for both of them. No tools were used.

(3) He moved 15 boxes from the building to the vehicle. D2 told him that the boxes contained switches. The vehicle was not locked.

(4) D2 found the car key in the office section after five minutes. They then drove the LGV away.

(5) The LGV they drove away from the scene was the one which was located by the police.

(6) He was given HK$10,000 as reward by D2.

In relation to Charge 4

(7) At the material time, D2 called him and asked him to pick D2 up at Nelson Street. When he saw D2, D2 had three to four recycle bags with him. One of them contained a golden Buddhist ornament.

(8) Upon his request for some of the gold ornaments, D2 gave him some. He then placed them at home.

(9) He confirmed that the gold ornaments seized by the police in his home were those given by D2.

(10) He believed that D2 had committed burglary in order to obtain those gold ornaments.

In relation to Charge 5

(11) At the material time, which should be a few days before the arrest, he drove the LGV TN1716 from Lai King to pick up D2 in Cheung Sha Wan at around 2-3 a.m.. They then drove to Chai Wan via Cross Harbour Tunnel. They also passed a police road block successfully on Hong Kong Island.

(12) The vehicle used in the offence was the LGV they drove away from the scene in Charge 1 and the number plate was TN1716 which was made by him in Kwai Fong.

In relation to Charge 6

(13) At around 7 a.m. on the material date, when he was driving the LGV TN1716, he saw another LGV of the same model and same color bearing registration mark MH3719.

(14) He then broke the window of the other LGV MH3719 with a hammer placed inside his LGV. He took away the vehicle licence, the amplifier, and a few items from LGV MH3719. He drove off afterwards.

(15) Some hours later, he went to make a new set of number plates of MH3719 in Cheung Sha Wan.

(16) He replaced the number plates of TN1716 with that of MH3719.

(17) He stole the vehicle licence and made new number plates because the police had stopped his LGV bearing TN1716 at the road block.

(18) The tools in the LGV belonged to D2 but he could use the tools too.

Arrest of D2

23.Upon stop and search, D2 was intercepted at 3:23 a.m. on 2017-02-25 near Belcher Street, Sai Ying Pun. D2 was arrested and cautioned.

Crux of the charges

24.Between 13^th and 14^th November 2016, D1 together with another person, having entered part of a building on No. 7 On Kui Street, Fanling, New Territories, Hong Kong as a trespasser, stole therein cash of $10,000 Hong Kong currency, 15 keys, one car key with anti-theft device, two testing machines, two generators, some cables, one distance-measuring equipment, one jacket and 1915 switches, worth about HK$521,915.76 in total (“Charge 1” against D1).

25.On 26^th November 2016, D1 dishonestly received 4 gold ornaments, worth about HK$2,274, property belonging to H & V Trading Limited, knowing or believing the same to be stolen goods (“Charge 4” against D1).

26.On 29^th November 2016, D1-2, having entered the Recycle Shop as trespassers, stole therein about 3 tons of copper scrap and a CCTV hard disc, worth about HK$116,800 in total (“Charge 5” against D1-2).

27.On 30^th November 2016, D1 stole one vehicle license from one light goods vehicle bearing registration mark MH3719 and a charging cable, a set of amplifier with cable, a capacitator with one plastic holder, a pair of sun glasses and a pair of speakers with one USB cable from the said LGV MH3719, worth about HK$8,000 in total, property belonging to WONG Tang-fung (“Charge 6” against D1). 

Mitigation

28.D1 is now aged 40.  He had many theft-related convictions.  However, the last of such records was already 6 years before the present offences.  At the present juncture, his previous convictions cannot be regarded as an aggravating factor in his sentence. 

29.D2 is now aged 48.  He had many theft-related convictions.  From 2013 to 2015, he got 3 burglary convictions.  This is an aggravating factor in his sentence. 

30.His solicitor Mr. Kwong informs me that D2’s role was minor compared to D1 on the 5^th Charge as D1 had prized open the shop and then left before coming back with D2 in a goods vehicle so that D2 could help him move the stolen property.  D2 was given $500 by D1 after the act.  This allegation is not disputed by D1 in court. 

Sentencing considerations

31.In R v Wong Man [1993] 1 HKC 80, Macdougall JA in the Court of Appeal states that the proper starting point for non-domestic premises shall be 2 years 6 months’ imprisonment for a first offender of full age.  It can be adjusted upwards if there are aggravating factors such as:

(a) The offence is carefully planned and skillfully executed involving the use of heavy instrument or equipment;

(b) The offence is committed by two or more people;

(c) The offence targets at substantial premises and involves substantial property;

(d) The offender is a professional burglar and not just an opportunist;

(e) The offender has previous convictions, particularly previous convictions of similar nature;

(f) The offender commits multiple offences.

Sentencing D1 and D2

32.The 1^st Charge, against D1, involves property of substantial value.  I add 3 months to the basic starting point of 2 years 6 months because of this.  It also involves an accomplice.  I add a further 6 months to the starting point.  After the one-third discount for the guilty plea, the sentence is 2 years 2 months. 

33.The 5^th Charge involves D1-2 acting in concert.  D1 was the instigator and main culprit.  I add 6 months to the basic starting point of 2 years 6 months.  After the one-third discount for the guilty plea, the sentence is 2 years for D1. 

34.In respect of D2 on the 5^th Charge, I take a basic starting point of 2 years 6 months.  I add 3 months to this because of his recidivism for burglary. After the one-third discount for the guilty plea, the sentence is 22 months for D2.    

35.I take a starting point of 6 months for the 4^th Charge, against D1.  After the one-third discount for the guilty plea, the sentence is 4 months. 

36.On the 6^th Charge, property worth about HK$8,000 was stolen from one LGV by breaking its middle window.  I take a starting point of 12 months.  After the one-third discount for the guilty plea, the sentence is 8 months for D1.

37.Just to reiterate, D2 is to be sentenced for one charge only, the 5^th Charge.  His sentence is 22 months. 

38.D1 is to be sentenced for several separate incidents but they took place in turn within a few days.  On totality principle, I adjust D1’s sentence as follows:

(1) 2 years 2 months on 1^st Charge;

(2) 6 months on 5^th Charge to be consecutive to other charges;

(3) 1 month on 4^th Charge to be consecutive to other charges;

(4) 1 month on 6^th Charge to be consecutive to other charges;

(5) The total sentence is 2 years 10 months.