HKSAR v. Lau Man Chi

DCCC 474/2018

[2018] HKDC 1351

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 474 OF 2018

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Reasons for Sentence

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1.The Defendant has pleaded guilty to a count of burglary.

2.Mr Ng, the victim in this case, resided in a multi-cubicle apartment (“MCA”), occupying a Room D at the material time.  He left his room at 1900 hours on 20 February 2018.  When he left, he had locked the wooden door.  However, he found that the door was unlocked when he returned at around 0800 hours the next morning.  There were signs of ransacking and some of his properties in Room D had gone missing.  The case was reported to the Police.

3.At about 0850 hours on the 21^st February 2018, shortly after the report was made, D was spotted carrying a suitcase and a handbag in the vicinity and PC14155 intercepted her for enquiry.  Upon search, most of the missing items of PW1 were found in the suitcase and handbag.  They were 2 packets of Marlboro cigarettes, one pink coloured jewellery bag containing a gold coin, one cosmetic bag containing 4 pieces of jade ornaments and two gold rings, one PS2 video game console and accessories, one iron box, one TV signal converter and a pair of earphones.

4.Further investigation disclosed that a wooden drawer, a bundle of unused “Lai See” packets and 3 other packets of cigarettes were placed inside a Room A of the MCA.  These items belonged to the victim and were removed from Room D.  At the end, it revealed that 5 mobile phones valued at $2,000 and a sum of $220 banknotes and coins, being the properties of the victim, were unable to be retrieved. 

5.The Defendant was duly arrested and cautioned for “burglary” and under caution, she admitted that she had took the above retrievable items.  She had entered Room D in the small hours on 21^st February 2018.

6.The Defendant also admits having stolen all the above items, retrievable and irretrievable, of the victim from Room D as a trespasser at the material time.

Mitigation

7.D is now 32.  She received education up to Form 4.  She is a divorcee with 4 daughters.  She was living with her grandmother and her daughters before the present remand.  The Defendant used to rely on CSSA.  She has a boyfriend who was the tenant of one of the rooms in the MCA where the Defendant would visit him and stay overnight on occasions.

8.In mitigation, D was said to have committed the present offence out of greed.  Her lawyer stressed that it was not D who had prized open the wooden door of Room D and she was only an opportunist.  There is no likelihood of re-offending.

9.This Court was told that most of the stolen properties were retrieved and D was prepared to compensate the victim with $2,220 to make up the loss of the cash and mobile phones.  This case was adjourned so as to enable D to prepare the money and for the prosecution to ascertain the position of the victim.

10.Today, I am told that the compensation has been made.  I shall take this as a meaningful mitigation.

11.There are also two mitigation letters.  In gist, in the first letter, D has expressed her deep reflection and she is very remorseful.  She feels very shameful for what she has done and the difficulties it brings upon her daughters and the aged grandmother.  The other letter is prepared by Ms Winnie Lo, a social worker of the SRCP.  It impresses me that D is described to be very remorseful and has a clear plan to turn a new leaf.

12.According to the criminal record, the Defendant has 4 previous convictions and most of them are drugs related, not similar to the present offence.

Consideration

13.The general guideline for “domestic” burglary gives a starting point of 3 years.  (See AG v Lui Kam Chi [1993] 1 HKC 215 and HKSAR v Ng Wai Hing [2003] 2 HKLRD 338 and HKSAR v Lau Pang [2004] 3 HKLRD 565).  But of course the situation varies in each case and there are certain aggravating factors such as planning and serial burglaries.

14.The Defence refer to the case of HKSAR v SIM Ka Wong CACC450/2000 (a non-domestic burglary case) in which the Court of Appeal endorsed an approach that “the conventional starting-point can be lowered in the case of the opportunistic burglar” (see p.5). 

15.I was told that in the present case, before the D was intercepted, she had already had the thought of returning some of the properties to Room D.  Whilst it is not denied that at the moment of her commission of the offence D had the dishonesty and the intention to permanently deprive the owner of the items she was stealing, the Defence want to impress upon me that D regretted very soon after.  At the least most of the items were retrieved and the loss to the victim in this case is kept to the minimal. 

16.Having considered all the circumstances of this case, I agree that D was only an opportunist.  It seems to me that D has a bitter lesson and the chance that she will re-offend essentially does not exist.

17.That said, the offence is still a serious one.  I do not find any other form of sentence appropriate in this case.  I shall however take a lower starting point.  Having carefully considered, I take a starting point of two and a half years’ imprisonment (2.5 years) which is reduced to 20 months to reflect the plea of guilty.

18.There is restitution.  I also take that D is genuinely remorseful.  I shall reduce the sentence by 2 more months in light of all the mitigations put on her behalf.

19.Consequently, D is sentenced to 18 months’ imprisonment.