HKSAR v. Fong Yan Kit

DCCC 348 & 508/2018

[2019] HKDC 399

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 348 & 508 OF 2018

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REASONS FOR SENTENCE

1.The defendant pleads guilty to seven charges of burglary, contrary to section 11 of the Theft Ordinance (charges 1, 2, 3, 4, 7, 8 & 10) and one charge of theft contrary to section 9 of the Theft Ordinance (charge 6)[1].

2.Full particulars of the offences are set out in the facts admitted by the defendant on 21 March 2019.  In summary between 11 September 2017 and 12 January 2018 the defendant burgled three guesthouses and four residential premises and stole property from a goods vehicle. 

Charge 1

3.On 11 September 2017 Mr Joo Yeo Seop, a Korean tourist, was staying at Room 506 of the Hong Kong Village Guesthouse on the 5th floor of Lyton Building, No. 44 Mody Road in Tsim Sha Tsui.  At 7:45 a.m. Mr Joo left the room leaving the door unlocked. 

4.CCTV captured the defendant entering Lyton Building at 7:50 a.m.; going up to the 5th Floor, entering the guesthouse and leaving at 7:56 a.m. with a computer bag. 

5.When Mr Joo returned at 8:30 a.m. he discovered his property was missing.  The defendant had stolen the computer bag; one passport; one bank card; one notebook computer; two smartphones and one Octopus card valued at HK$14,500, the property of Mr Joo.

Charge 2

6.On 2 October 2017 Mr Antonio Lao Y Con and his daughter, tourists from the Philippines, were staying at Room 132, Flat E of Hao’s Inn Guesthouse on the 5th floor of Golden Crown Court, Nos. 66-70 Nathan Road in Tsim Sha Tsui.  At 7:04 a.m. Mr Lao Y Con went to the bathroom while his daughter was still sleeping in the room.

7.CCTV captured the defendant entering Golden Crown Court at 7:10 a.m., going up to the 5th Floor, entering the guesthouse and leaving at 7:20 a.m. with a cross-body bag. 

8.When Mr Lao Y Con returned to the room at 7:30 a.m. he discovered his property was missing.  The defendant had stolen the bag; four bank cards; a smartphone; HK$10,000; ₱14,000 Philippine Peso and S$200 Singapore dollars valued at $13,292, the property of Mr Lao Y Con. 

Charge 3

9.On 16 October 2017 at around 4:30 a.m. hours Ms Li Ling, the occupant of Room 8 on the 12th floor of Alhambra Building (a residential building), No. 383 Nathan Road in Yau Ma Tei, fell asleep.  The gate to Room 8 was not closed and the doors to the room and bedroom were not locked.

10.CCTV captured the defendant entering Alhambra Building and entering and exiting Room 8 three times between 5:56 and 6:02 a.m.  On leaving Room 8 for the third time the defendant was seen carrying a red handbag.

11.When Ms Li woke up she discovered her red handbag which had been on her bed was missing.  The defendant had stolen the red handbag containing three bank cards; one China exit/entry permit; one iPhone; one wallet; HK$18,900 and some personal belongings valued at $24,910, the property of Ms Li. 

Charge 4

12.On 19 November 2017 Mr Ota Takayuki, a Japanese tourist, was staying in Room 5 of JohnSon Hostel, Flat 516 on the 5th floor of Sincere House, No. 83 Argyle Street in Mong Kok.  At about 1:00 a.m. Mr Takayuki fell asleep without checking whether he had locked the door.

13.CCTV captured the defendant entering Room 5 at about 4:50 a.m. and leaving with a black wallet. 

14.When Mr Takayuki woke up at 8:00 a.m. he found his wallet, which he had placed on the bedside table, was missing.  The defendant had stolen the wallet containing HK$2,000; ¥500 Renminbi and some personal identification documents valued at HK$3,400 and ¥500 Renminbi, the property of Mr Takayuki. 

Charge 6

15.At about 4:00 p.m. on 20 November 2017 while the driver of light goods vehicle KE 8718 was sleeping inside the vehicle the defendant stole a backpack containing a wallet; an identity card; a Home Visit Permit; a driving licence; an ATM card; HK$4,500 and ¥3,200 Renminbi valued at $11,720, the property of Mr Chiu Chi Lam, the driver of the light goods vehicle.

Charge 7

16.At about 4:00 p.m. on 18 December 2017 on hearing noise from the floor above Ms Akmeemana left her friend’s home on the 6th Floor of No. 6 Elgin Street in Sheung Wan without closing the door.  Five minutes later when Ms Akmeemana returned to the flat she found her handbag missing. 

17.The defendant stole the handbag containing a wallet; an identity card, an ATM card; a Samsung smartphone; two passports; an Octopus card; HK$1,600 and some keys valued at $4,320, the property of Ms Akmeemana.

Charge 8

18.On 4 January 2018 CCTV captured the defendant going to the 7th floor of Lai Shing Building, No. 497 Nathan Road in Yau Ma Tei at 3:30 a.m. 

19.At about 3:40 a.m.Mr Li Yu Ming, the occupant of Flat E on the 7th floor, was woken up from his sleep when he heard a loud bang.  The defendant opened the door of Mr Li’s room, said sorry and ran off.  

20.Mr Li found his property missing including a computer bag.  CCTV captured the defendant leaving the 7th floor at 3:54 a.m. with the computer bag.  The defendant had stolen one computer bag; one MacBook; two wallets; one Hong Kong identity card; one Home Visit Permit; One ATM card; five credit cards; HK$4,300; and ¥300 Renminbi valued at $19,870, the property of Mr Li.

Charge 10

21.At about 11:30 p.m. on 11 January 2018 Ms Huang Mengxia closed the door of her home at Flat 3AB on the 3rd Floor of Mascot House, Nos. 746-748 Nathan Road in Mong Kok without locking the door and then went to sleep. 

22.CCTV captured the defendant entering Mascot House, entering Flat 3AB and leaving Flat 3AB with a backpack and a handbag. 

23.When Ms Huang woke up at about 6:30 a.m. the next morning she discovered her property was missing including the two bags.  The defendant had stolen one smartphone; a phone case; a key card; two bags; a laptop computer; a Kindle E-reader; a book; a student card; a China exit/entry permit; a passport; two identity cards; a purse; HK$400; ¥710 Renminbi; six bank cards and some miscellaneous items valued at $8,686, the property of Ms Huang. 

Arrest

24.At about 5:51 a.m. on the same day DPC 14807 saw the defendant leaving Mascot House and getting on a taxi.  The defendant was intercepted when he got off the taxi.  The police found in the defendant’s possession the laptop computer; a mobile phone; five bank cards; HK$400; ¥710 Renminbi and the key card for the 3rd floor of Mascot House, all of which were stolen from Flat 3AB.   

25.Under caution and in a subsequent video recorded interview the defendant admitted he took advantage of the unlocked door of Flat 3AB and that he had stolen the items found on him. 

26.In subsequent video recorded interviews and records of interview the defendant admitted all the other burglaries and the theft of property from the light goods vehicle. 

27.The total value of the property stolen is just over $100,000 of which about half is cash.  Mr Chan informs the court that apart from the property found on the defendant on arrest no other property has been recovered. 

Mitigation

28.In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Yuen.  Mr Yuen says the defendant promises this will be the last time he commits any offences and that after serving his prison sentence he will return to the Mainland to live with his wife and work as a painter. 

Starting point

29.The correct starting point for a single burglary of residential premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years imprisonment. 

30.Mr Yuen accepts that burglary of rooms in guesthouses are to be equated with a domestic burglary[2]. Burglary of guesthouses used by tourists affects Hong Kong’s reputation for order and security and the hotel and service industry. 

31.I am satisfied a starting point of 3 years is appropriate for each burglary and 12 months for theft from the light goods vehicle.

Aggravating features

32.The defendant has appeared in court on 17 occasions amassing a total of 27 convictions, 16 of which are for burglary.  The defendant last appeared in court in March 2017 when he was sentenced to 14 months’ imprisonment for burglary[3]. The defendant was discharged from prison on 5 September 2017[4].  Six days later the defendant commits the first burglary. 

33.I am satisfied the defendant is properly to be regarded as a persistent offender.  I enhance the starting point for each burglary by 9 months to 3 years and 9 months’ imprisonment. 

34.The burglaries subject of charges 3, 4, 8 & 10 were committed in the early hours of the morning when the occupants were at home asleep.  I enhance the starting point for these four burglaries by a further 3 months to 4 years’ imprisonment[5]. 

35.Giving the defendant full credit for his pleas of guilty reduces the sentence on charges 1, 2 & 7 to 2 years and 6 months’ imprisonment; on charges 3, 4, 8 & 10 to 2 years and 8 months’ imprisonment and on charge 6 to 8 months’ imprisonment.

Confession

36.Mr Yuen submits that credit should be given to the defendant for his assistance to the authorities in admitting all the offences when interviewed by the police.  Mr Chan confirms that without the defendant’s confession there was insufficient evidence on charges 1, 2, 3, 4, 6, 7 & 8.   

37.In HKSAR v Ma Ming[6] the Court of Appeal held that the fact that a frank confession provides the only evidence which supports the charge did not entitle the defendant to a further discount over and above the one-third discount. 

38.The Court of Appeal in HKSAR v Ngo Van Nam[7] reaffirmed the position that a judge was not obliged to give a discount over and above the one-third discount explaining that the mitigating factor of a confession was subsumed within the one-third discount.   

39.The court in Ma Ming did however say that when considering the totality of the sentence a court, in exercising its discretion, can take into account the fact that the frank confession of a defendant provides the only evidence to support the charge. 

Totality

40.Where offences are committed in different premises against different victims on different dates, consecutive sentences should be imposed, subject to the totality principle[8].

41.On 29 July 2014 the defendant appeared in the District Court when he pleaded guilty to eight charges of burglary of non-domestic premises[9].  The defendant was sentenced to a total sentence of 4 years’ imprisonment.  At the request of the court an agreed translation of the Reasons for Sentence has been submitted.  I have considered the Reasons for Sentence. 

42.The sentence clearly did not have a deterrent effect on the defendant who as noted earlier was again sentenced to imprisonment in March 2017 for an offence of burglary. 

43.The defendant was released from prison on 5 September 2017 and six days later committed the burglary subject of charge 1[10]. 

44.The defendant can expect the sentence for seven domestic burglaries and one theft to be longer than the sentence he received in 2014 for eight non-domestic burglaries[11].

45.Taking into account the burglaries were of domestic premises; some burglaries were at night when the premises were occupied; the total value of the property stolen was just over $100,000; except the property found on the defendant when arrested nothing has been recovered; and without the defendant’s confessions the prosecution had insufficient evidence on charges 1, 2, 3, 4, 6, 7 & 8, I am satisfied a total sentence of 4 years and 4 months’ imprisonment properly reflects the defendant’s criminality on the eight charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[12].  

Sentence

46.The defendant is convicted and sentenced as follows:

Charge 3 – 2 years and 8 months’ imprisonment.

Charges 4, 8 & 10 – 2 years and 8 months’ imprisonment on each charge concurrent with 9 months consecutive and 23 months concurrent to charge 3;

Charges 1, 2 & 7 – 2 years and 6 months’ imprisonment on each charge concurrent with 9 months consecutive and 21 months concurrent to charges 3, 4, 8 & 10; and

Charge 6 – 8 months’ imprisonment with 2 months consecutive and 6 months concurrent to charges 1, 2, 3, 4, 7, 8 & 10.

The total sentence to be served by the defendant is 4 years and 4 months’ imprisonment.