HKSAR v. Cheung Kwok Wai

DCCC 1093/2018

[2019] HKDC 1042

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1093 OF 2018

-----------------------------

-----------------------------

-----------------------------------------

REASONS FOR SENTENCE

-----------------------------------------

Introduction

1.The defendant is convicted upon his own guilty plea of Charges 1, 4, 8, 9 and 10 of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

Facts

Charge 1

2.Madam LEUNG (aged 87) (“PW1”) lived in the address particularized in Charge 1 (“L1”).  At around 1:30 pm on 12 May 2018, PW1 left Ll after she secured its wooden door and metal grille.  About 9 hours later, upon PW1’s return, she found that the said metal grille was left ajar, the said wooden door had been prized open, and there were signs of ransacking inside Ll.

3.Upon checking, PW1 found that: (a) HK$11,000 cash; (b) RMB 1,400 cash; (c) 1 gold chain; (d) 1 diamond ring; and (e) 1 Bank of China passbook (collectively “SP1”), with a total value of about HK$18,680, were missing from Ll.  PW1 then reported this case to the police.

Charge 4

4.Madam SO (aged 45) (“PW2”) lived in the address particularized in Charge 4 (“L2”).  At around 9:30 am on 30 June 2018, PW2 left L2 after she secured its wooden door and metal grille.  About 12 hours later, upon PW2’s return, she found that the said metal grille was left ajar, the said wooden door was prized open, and there were signs of ransacking inside L2.

5.Upon checking, PW2 found that: (a) HK$10,000 cash; (b) 2 diamond rings; (c) 1 ‘Gucci’ handbag; (d) 1 ‘Apple’ iPhone 4; (e) 1 ‘Apple’ iPhone 4s; (f) 1 ‘Apple’ iPhone 6; (g) 1 wristwatch; (h) 1 ‘Dupont’ lighter; and (i) 1 ‘Dupont’ pen (collectively “SP2”), with a total value of about HK$59,500, were missing from L2.  PW2 then reported this case to the police.

6.The footage of the CCTVs installed at Fu Yuet House revealed that a male, who resembled the defendant, entered the said building at the material time.

Charge 8

7.Madam TAM (aged 58) (“PW3”) lived in the address particularized in Charge 8 (“L3”).  At around 12:00 noon on 14 July 2018, PW3 left L3 after she secured its wooden door and metal grille.  About 4 hours later, upon PW3’s return, she found that she could not open the said metal grille with her keys.  PW3 then went to seek assistance from the security guards of the building.

8.About 10 minutes later, PW3 returned to L3, and found that the metal grille and the wooden door of L3 were left ajar, and there were signs of ransacking inside L3.

9.Upon checking, PW3 found that: (a) HK$2,500 cash; (b) RMB1,500 cash; (c) 1 ‘Apple’ MacBook Pro; (d) 1 ‘Sony’ notebook computer; (e) 1 ‘Asus’ notebook computer; and (f) 1 ‘Apple’ iPad mini (collectively “SP3”), with a total value of about HK$30,324, were missing from L3.  PW3 then reported this case to the police.

10.The footage of the CCTVs installed at Fu Tin House revealed that a male, who resembled the defendant, entered the said building at the material time.

Charge 9

11.Mr WONG (aged 27) (“PW4”) lived in the address particularized in Charge 9 (“L4”).  At around 11:00 am on 17 July 2018, PW4 checked everything in order, and then left L4 after he secured its wooden door and metal grille.  About 13 hours later, upon PW4’s return, he found that the said metal grille damaged, the said wooden door was prized open, and there were signs of ransacking inside L4.  PW4 then reported this case to the police.

12.Upon checking, PW4 found that his ‘Apple’ MacBook Air (“SP4”), with a value of about HK$12,000, was missing from L4.

13.The footage of the CCTVs installed at Cheung Tin House revealed that a male, who resembled the defendant, entered the said building at the material time.

Charge 10

14.Madam WU (aged 54) (“PW5”) lived in the address particularized in Charge 10 (“L5”).  At around 10:00 am on 17 July 2018, PW5 left L5 after she secured its wooden door and metal grille.  Thereafter, PW5 went to Mainland China.

15.At around 5:26 pm on 20 July 2018, in conducting an anti-burglary operation in the vicinity of Fu Cheong Estate, a police officer watched the real time footage of the CCTVs installed at Fu Ying House, and spotted the defendant who entered Fu Ying House empty-handed and then took a lift to go upstairs.  About an hour later, the defendant took a lift to go downstairs, and then left Fu Ying House, while carrying a recycle bag.

16.At around 6:24 pm on the same day, police officers spotted the defendant near Fu Cheong Shopping Centre, 19 Sai Chuen Road, Sham Shui Po, Kowloon, Hong Kong, and then intercepted the defendant for enquiry.

17.Upon body search, the police officers found: (a) HK$1,140 cash; (b) RMB 550 cash; (c) 5 pairs of earings, 1 wristwatch, 13 rings, 5 necklaces, 4 wrist chains, 3 necklaces with pendant, 3 pendants, 2 bracelets; (d) 1 Bank of China passbook, 1 bank card; (e) 1 HKSAR passport, 1 One-way Permit, 1 People's Republic of China Permit for Proceeding to Hong Kong and Macau; and (f) some documents and some other miscellaneous items (collectively “SP5”), inside the recycle bag carried by the defendant.

18.The defendant was then arrested.  Under caution, the defendant stated that he obtained the bag of jewellery, cash and documents from burgling the 10^th floor of Fu Ying House.  Afterwards, the defendant led the police officers to L5, and pointed out that he burgled the residential unit at L5.

19.On 20 July 2018, PW5 returned to L5, and found that one piece of iron plate at the bottom of the metal grille of L5 was removed, the wooden door of L5 was prized open, and there were signs of ransacking inside L5.

20.Upon checking, PW5 found that some of her personal belongings, with a total value of about HK$22,779, were missing from L5.  Thereafter, the police officers showed SP5 to PW5, and then she confirmed that SP5 belonged to her, and were her personal belongings missing from L5.

21.The footage of the CCTVs installed at Fu Ying House revealed that a male, who resembled the defendant, entered the said building at the material time.

22.The defendant admitted under caution in subsequent video-recorded interviews, inter alia, that:-

Charge 1

(i) He burgled L1 on 12 May 2018. He unlocked the metal grille of L1 by extending his arm through its gap, and then forcibly kicked open the wooden door of L1. He then entered L1 and stole a ring, HK$11,000, RMB1,400 and a passbook. He spent all the stolen cash and disposed of the passbook;

Charge 4

(ii) At around 6 to 7 pm on 30 June 2018, he entered Fu Yuet House by following other people. Before that, he observed that nobody was inside L2. After he had entered Fu Yuet House, he went to L2, and unlocked its metal grille by extending his arm through the gaps of the metal grille. He then forcibly kicked open the wooden door and entered L2. He stole several thousand dollars, several iPhones, a watch, a handbag, a lighter and a notebook computer from L2. He sold the stolen property for HK$5,000 and spent the proceeds and all the cash he stole from L2. He confirmed that he was the suspect captured by the CCTVs;

Charge 8

(iii) He burgled L3 on 14 July 2018. He unlocked the metal grille of L3 by extending his arm through its gap, and then forcibly kicked open its wooden door. When he was burgling L3, someone tried to open the metal grille of L3 but failed, as he had locked the metal grille from inside. He sold the stolen property for a few thousand dollars, and spent all the proceeds and the stolen cash. He confirmed that he was the suspect captured by the CCTVs;

Charge 9

(iv) He burgled L4 and stole an “Apple” MacBook on 17 July 2018. He broke a piece of metal stripe at the bottom of the metal grille of L4, and then unlocked the metal grille by extending his arm through its gap. He then forcibly kicked open the wooden door of L4 and entered L4. He sold the said “Apple” MacBook and spent all the proceeds; and

Charge 10

(v) At around 5:20 pm on 20 July 2018, he entered Fu Ying House by following other people. He took a lift to 29/F, and then walked down the stairs to 10/F in order to prevent being captured by CCTVs. He observed that nobody was inside L5. He detached a piece of metal bar at the bottom of the metal grille of L5, and then unlocked the metal grille by extending his arm through the gap. He prized open the wooden door of L5 by prying it with the detached metal bar and then kicking on it forcibly. He entered L5 and stole some cash, jewellery and other personal belongings. He confirmed that at around 5 to 6 pm on 20 July 2018, he stole SP5 from L5.

23.At all the material times, the defendant did not have any right or permission to enter L1, L2, L3, L4 or L5, but he entered those premises as a trespasser on the respective dates mentioned above, and stole SP1, SP2, SP3, SP4 and SP5 totally worth about HK$143,283 from L1, L2, L3, L4 and L5 respectively.

Previous record and antecedent

24.The defendant has 56 previous convictions resulted from 39 cases from 1992 to 2017.  Out of which 42 previous convictions were dishonesty related offences of theft, burglary, handling stolen goods, aiding and abetting burglary, obtaining property by deception and obtaining services by deception.  He was last sentenced to a total term of 2 years’ imprisonment in May 2017 for the offences of burglary and handling stolen goods, and was discharged in October 2017.

25.The defendant was born in September 1975.  He is now 43 years old.  He received education up to Form 3 level.

Mitigation

26.Mr Sherry submitted written Mitigation of even date to this court.  He referred this court to various cases and asked this court to impose a total sentence of no more than 4 years’ imprisonment.

Sentence

27.Three years’ imprisonment is in general the appropriate starting point for a single offence of burglary of domestic premises committed by a first offender of full age in circumstances unattended by either particular aggravation or particular mitigation: Attorney General v Lui Kam Chi[1] and HKSAR v Lau Pang[2].

28.In R v Tong Hoi-fung[3], the Court of Appeal has said that where there is more than one offence of a similar nature committed at different times, it is right for the court to award a higher sentence than if there  had been only one offence.

29.In Attorney General v Lo Ching-fai[4], the Court of Appeal considered an overall starting point of 3½ years’ imprisonment appropriate for two charges of burglary committed by the offender of previous good character.

30.Domestic premises were involved in the present 5 charges.  I will adopt a starting point of 3 years’ imprisonment for each of the charges.

31.The defendant has 42 previous convictions of dishonesty related offences.  He was discharged from prison on 13 October 2017 but he committed Charge 1 on 12 May 2018, 7 months after his discharge from prison.  Further, the present five burglaries were committed within a short period of time on 12 May, 30 June, 14 July, 17 July and 20 July 2018.  The defendant is a persistent offender.  I have considered HKSAR v Chan Pui-chi[5] and make an upward adjustment of 6 months for each of the charges.

32.I give one-third discount for the defendant’s timely indication of guilty plea.  The sentence for each charge is therefore reduced from 42 months’ imprisonment to 28 months’ imprisonment.

33.The five offences took place on 12 May, 30 June, 14 July, 17 July and 20 July 2018 and the total value of the stolen property was about HK$143,000.  On totality, I order that 5 months’ imprisonment in each of Charges 1, 4, 8 and 9 to run consecutively with the 28 months’ imprisonment in Charge 10, thus making a total sentence of 48 months’ imprisonment.