HKSAR v. Ting Ka Wai

DCCC 548/2018

[2019] HKDC 106

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 548 OF 2018

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REASONS FOR SENTENCE

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1.The defendant was charged with four offences of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 (Charges 1 to 4). He pleaded guilty and admitted the relevant facts for Charges 1, 3 and 4, and was convicted accordingly. Charge 2 was, on the prosecution’s application, left on court file.

THE ADMITTED FACTS

Incident 1 (Charge 1)

2.It involved a shop on ground level in Sai Yeung Choi Street South, Mongkok, and the shop was at the material time under renovation.  At about 10 pm on 30 July 2017, the anti-burglary alarm went off and the guard went to check.  The guard saw a man pushing the rear door and thought he was a construction worker.  When he arrived at the staircase near the rear door, that man had already gone.  The guard yelled at him and a male voice replied, “I know, I have finished work just now and I am leaving.”

3.Later at 11 pm, the guard conducted patrol and found a gap between the wooden hoardings of the shop.  A report was made. Subsequently, the worker confirmed that he had secured the shop before leaving the shop and, upon checking at the shop, one levelling device, four electric screwdrivers, one electric saw and one hydraulic drill were found missing from the shop, estimated to be about HK$8,000.

Incident 3 (Charge 3)

4.It also involved a shop on ground level in Dundas Street, Mongkok area, which was also under renovation at the material time.  At 4 pm on 7 January 2018, a worker placed three electric drills, two grinders, two jig saws, three electric screwdrivers and one jackhammer inside a metal storage box in the shop and locked the same with a padlock.  He then secured the front wooden door of the shop with a password lock and left.

5.On his return the next morning, he found the temporary wooden door of the shop having been prised open.  The metal storage box in the shop was also prised open and all the construction tools therein went missing, the total value of which was about HK$12,800.

Incident 4 (Charge 4)

6.It involved a shop on ground level in Nathan Road, Mongkok area.  The shop was under renovation and was fenced off by wooden hoardings.  At about 5 pm on 1 March 2018 a worker finished work and secured the shop before leaving. 

7.At about 11:10 pm, some police officers were patrolling nearby and found the door of the wooden hoardings left ajar.  Upon entering the shop, they found a broken padlock on the floor.  They also noticed that the rear door of the shop had been left ajar.  They therefore went out of the shop to have a look.

8.At this juncture, they found the defendant on the rear lane, pushing a cart loaded with one jack hammer, one electric saw and one sander on the rear lane, which were all subsequently confirmed to be stolen property from the shop.  The officers revealed their police identities and the defendant immediately fled.  The defendant was however intercepted and, upon search, a screwdriver and a torch were found on him.

9.Under caution at the scene, the defendant admitted that he had broken into the shop with the screwdriver and had stolen some construction tools therein.

10.The CCTVs installed in the vicinity of the shops involved in Incidents 1 and 3 were seized for investigation.  They captured the defendant entering those shops on 30 July 2017 and 7 January 2018 respectively.

11.The police took altogether three cautioned video-recorded interviews with the defendant, where the defendant admitted that he had committed burglaries in Incidents 1, 3 and 4.  He also admitted that he had stolen construction tools in those Incidents out of greed.  He had sold all those tools in Apliu Street and spent all the money in gambling and drinking.

12.During those cautioned interviews, the defendant also positively identified himself in the printed screens of the CCTVs related to Incidents 1, 3 and 4.

The defendant’s background

13.The defendant was born in 1959 and is now 59 years old.  He was married in 1973 but divorced in 2012.  He had two children aged 20 and 22 respectively.  He received Primary 6 education in the mainland China.  He used to work as a decoration worker and at the time of the arrest he was a construction worker.

14.In relation to his previous convictions, he has altogether 25 previous convictions entered on 19 court appearances.  Out of those previous convictions, 5 of them were burglaries or attempted burglaries, and 5 of them were theft or attempted theft.  The last conviction was one of attempted burglary, which was entered on 23 March 2015, for which he was sentenced to 20 months’ imprisonment.

Mitigation

15.All those antecedents and records of the defendant were admitted by the defence.  Mr Ng, counsel for the defendant, fairly accepted that those were bad criminal records.

16.As mitigation on behalf of the defendant, Mr Ng submitted a handwritten letter by the defendant, where the defendant expressed remorse and asked for leniency.  Mr Ng asked the court to take into account his guilty pleas at the earliest opportunity and also the totality principle, and asked the court to deal with the defendant leniently, so that he could have a reunion with his family as soon as possible.

Sentence

17.There are clear sentencing guidelines laid down by the Court of Appeal for burglaries.  The usual starting point for burglary of non-domestic premises is 2½ years, that is, 30 months.  See AG v Lui Kam Chi [1993] 1 HKC 215.

18.The starting point can be adjusted upwards if there are aggravating circumstances, such as: the offender is a professional burglar and not just an opportunist; the offender has previous convictions, particularly previous convictions of similar nature; and the offender commits multiple offences.  If the offences were committed at different premises against different victims at different dates, consecutive sentences should be imposed.  See HKSAR v Cheng Wai Kai, CACC 338/2007, paragraphs 15 and 16.

19.In this case, in view of the defendant’s previous similar convictions and his commission of three burglaries all targeting shops under renovation in Mongkok area over a period of seven months, he is no doubt a professional burglar and not an opportunist.

20.I am of the view that the proper starting point for each of the three charges in this case should be increased from the usual starting point of 30 to 33 months, or the proper overall starting point for this case should be one of 45 months.

21.Apart from the defendant’s guilty pleas, I do not find any other circumstances, neither from the defendant’s personal background nor the offences themselves, amount to any significant mitigation.

22.I shall nevertheless give him the full one-third discount for his timely guilty pleas.

23.As said, if an overall starting point of 45 months is adopted, the final sentence after one-third discount for guilty pleas would be one of 30 months.

24.Also, as said, I adopt a starting point of 33 months for each of Charges 1, 3 and 4.  After discount of one-third for the defendant’s guilty pleas, I sentence him to 22 months for each of Charges 1, 3 and 4.

25.To apply the totality principle and to achieve the said overall final sentence of 30 months’ imprisonment, I order 4 months of each of Charges 3 and 4 to run consecutively to the sentence of the 22 months’ imprisonment under Charge 1.

26.The final sentence of the defendant in total is 30 months’ imprisonment.