HKSAR v. Ko Wai Tim

DCCC 821/2018

[2019] HKDC 631

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 821 OF 2018

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty before me to an amended charge of handling stolen goods (Charge 1), two counts of burglary (Charges 2 and 3). He pleaded not guilty to a count of possession of a dangerous drug (Charge 4). He admitted the facts pertaining to amended Charge 1 and Charges 2 and 3.

2.I convicted the defendant of amended Charge 1, Charges 2 and 3.  On the application by the prosecution, I ordered that Charge 4 be left on court file, not to proceed with without leave of this court or the Court of Appeal.

3.Amended Charge 1, Charges 2 and 3 concerned a construction site.  At all material times, the construction works at the construction site of On Tai Estate in Sau Mau Ping, Kowloon had not yet finished.  The construction site consisted of some buildings, including On Tai Shopping Centre and Shing Tai House.  While the contractors of the construction site left entrances on the buildings open for work convenience, they surrounded the site by barricades, though not fully enclosing the site and had openings to allow access into the site.

4.Charge 3 took place on 20 May 2018.  On 20 May 2018 at 4:30 am, police laid ambush outside the construction site.  The defendant, with a lit torch, approached the construction site and bypassed the barricades surrounding it. Police followed the defendant and saw him entering the On Tai Shopping Centre at the construction site.  The defendant then furtively searched around with the torch.

5.A few minutes later, police intercepted the defendant after he exited the On Tai Shopping Centre and was trying to leave the construction site.  The police searched and found some tools in the bag carried by the defendant, namely three pairs of gloves, a handsaw, two screwdrivers, pliers, a paper cutter, two pipe cutters, a ratchet, two iron rods, a hook and a towel. 

6.At the material time, the defendant entered as a trespasser into part of the building known as On Tai Shopping Centre at the construction site, with intent to steal therein.

7.Charge 2 took place on or around 16 May 2018.  On 16 May 2018 in the morning, at the ground floor of Shing Tai House in the construction site, a storeroom was found being prised open.  Last security check on this storeroom was on 15 May 2018 in the evening.  The following tools stored in this storeroom were found missing: ie eight electric drills, three water taps, four pipes, one electric screwdriver, four chargers and two batteries.  Total value of these items was $57,200.  These construction tools were found by the police during the house search at the defendant’s residence in Yau Tong on 20 May 2018. 

8.During subsequent interviews, the defendant stated under caution that, for the construction tools found in his flat, all were stolen by him in the construction site.  He stole them there in May 2018 by prising open a locked storeroom.

9.For Charge 2, the defendant admitted he entered as a trespasser part of the building known as the storeroom, Ground Floor, Shing Tai House, at the construction site, and stole therein eight electric drills, three water taps, four pipes, one electric screwdriver, four chargers and two batteries.

10.Charge 1 took place between 3 February 2018 and 20 May 2018.  During the house search on 20 May 2018, police also found an electric screwdriver in the defendant’s residence.  The said electric screwdriver was stolen from a unit at 6th Floor, Block 6 of the construction site in early February 2018.  At that time, the locked toolbox stored inside that unit was found damaged and this electric screwdriver stored therein was found missing.  This item belongs to a construction site worker, Mr Wong, and its value was $1,000.

11.For Charge 1, the defendant admitted that he dishonestly received the electric screwdriver the subject matter of Charge 1, the property belonging to Mr Wong, knowing or believing the same to be stolen goods.

12.The search of the defendant’s mobile phone revealed that on 16 May 2018 the defendant offered to sell some of these stolen goods to another person and had sent him the photographs of those tools.

13.The antecedent statement of the defendant shows that he was born in China and is now 60 years old.  He received primary education in China.  He arrived in Hong Kong in 1980 and he worked as a construction worker.  He is a drug addict with a consumption habit of about once or twice a week.  He resided with his wife and his daughter in Yau Tong.

14.The defendant was first convicted of remaining in Hong Kong without the authority of Director of Immigration after having landed unlawfully in Hong Kong in 1980.  By now, he has accumulated 25 conviction records, including six counts of robbery, one of rape, two of indecent assault, six counts of burglary, and 3 of going equipped for stealing.  His last conviction was in 2016, when he was convicted of one count of criminal intimidation.

15.I am grateful to Mr Donald for the detailed written mitigation prepared for the defendant.  In the written mitigation, Mr Donald supplemented the antecedent statement and told me the defendant is now divorced.  The daughter of the defendant is now aged 14 and is a secondary school student.  At the time of his arrest, the defendant worked as an elevator technician in a construction company and his monthly earnings was approximately $15,000.

16.For the electric screwdriver the subject matter of Charge 1, Mr Donald told me the defendant received the electric screwdriver from a friend, who admitted to the defendant that he had stolen the screwdriver from a construction site, and he promised the defendant $100 if the defendant could sell it for him.  The defendant agreed and he took the electric screwdriver home and he was waiting for the chance to see if he could sell it for his friend. 

17.The facts in relation to the two burglary counts as are set out in the summary of facts and admitted by the defendant.

18.Mr Donald asked me to take into consideration the guilty pleas tendered by the defendant at the early stage, the remorse shown by the defendant, and the three offences concerned commercial premises only.

19.Mr Donald told me the defendant was heavily addicted to dangerous drugs at the time of his arrest.  He committed the offences to get quick and easy money to support his drug addiction.  The drug addiction of the defendant was complicated by the defendant’s depression and poor emotional state, as he had in the middle of May 2017 been formally divorced and had lost custody of his only daughter.  He had to pay maintenance of $4,000 a month.

20.For the two burglary counts, Mr Donald submitted that, for non-domestic premises burglary, the normal starting point after trial is that of 30 months. There were no aggravating features in respect of the burglary charges and the handling offence, apart from the criminal record of the defendant.  Only tools were stolen for Charge 2 and Charge 3.  The burglary offences were not professional in nature, in that the defendant only entered the construction site and stole items therein.

21.Mr Donald submitted that the criminality of Charge 1, the handling charge, was at the very low end of the scale. 

22.Mr Donald asked me to take into account the totality principle in sentencing the defendant for the three offences.

23.In sentencing the defendant, I have borne in mind the facts of this case, the background of the defendant, and all the matters urged on the defendant’s behalf by Mr Donald.

24.On Charge 1, I take 12 months’ imprisonment as the starting point.  The defendant can be described as a recidivist as far as dishonest offences are concerned.  This aggravating factor calls for a higher starting point.  The starting point of 12 months’ imprisonment is aggravated by 3 months.  The defendant is entitled to one-third reduction for his guilty plea. 

25.For the reasons given, I sentence the defendant to 10 months’ imprisonment on Charge 1.

26.For Charges 2 and 3, both burglaries concerned non-domestic premises. For non-domestic premises, in the absence of aggravating features, a starting point of 30 months’ imprisonment is appropriate, but the defendant can rightly be described as a recidivist as far as burglary offences are concerned.  I adopt a higher starting point of 36 months’ imprisonment for Charge 2 and Charge 3. The defendant is entitled to one-third reduction for his guilty plea.

27.For the reasons given, on Charge 2 and Charge 3, I sentence the defendant each to 2 years’ imprisonment.

28.I have considered the totality principle.  In my judgment, a total sentence of 33 months should adequately reflect the overall criminality of the three offences.

29.I order 6 months of the sentence of Charge 3 to run consecutively to the sentence for Charge 2, making a subtotal of 30 months.

30.I order 3 months of the sentence of Charge 1 to run consecutively to the sentences for Charges 2 and 3, making a total sentence of 33 months.