HKSAR v. Lui Cho Yiu also known as Lui Pang and Lui Hon Pang

DCCC 54/2019

[2019] HKDC 685

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 54 OF 2019

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REASONS FOR SENTENCE

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1.Defendant is convicted of a charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210, on his own plea and agreement to summary of facts.

Facts

2.In the evening of 7 October 2018, PW1, owner of Tsui King Lau Restaurant in Yau Tong, checked that there was $1,200 cash, comprising HK$20 banknotes, HK$10 banknotes and coins, in the cash register of the restaurant.  He locked the gate and left the restaurant.

3.In the morning of 8 October 2018 at around 6:30 am, PW2, the security guard of the shopping centre within which the restaurant situated, found that the gate of the restaurant was left ajar.  Further, he found a cash register inside one of the cubicles of the public toilet inside the shopping centre.  He informed PW1 of the matter and reported the case to police.

4.CCTV camera in the restaurant captured the defendant entering the restaurant and taking away the cash register of the restaurant.

5.Defendant was later intercepted by police on the same day, upon search, 25 HK$20 banknotes, HK$760 cash, and RMB¥167 was found on him, as well as some coins amounting to HK$13 were found on the defendant.

6.Defendant was arrested for burglary. 

7.In the video recorded interview subsequently conducted, defendant admitted, inter alia, that he used a screwdriver to prise open the iron gate of the restaurant and took away the cash register. 

8.At all material times, the cash register of the restaurant and the HK$1,200 cash were properties belonging to PW1.

Criminal record

9.Defendant has 31 criminal convictions.  His criminal record dated back to year 1972.  21 of these convictions related to theft, of which 6 were similar convictions to the present charge.

Mitigation

10.Defendant is aged 75. 

11.He is divorced.  He lived with his ex-wife, a waitress.  He has a daughter studying in Australia.  He has been unemployed for the last 20 years and survived on CSSA.  He has received education up to Form 1 level. 

12.He suffers from hernia and had also undergone two surgeries including partial Colectomy and Coronary Angioplasty.  Since then, he has been prescribed medication.  According to the defendant, this medication caused side effects to his stomach and he spent some money in buying other medication to improve his own health condition.

13.Although it was submitted that the defendant did commit the crime in order to obtain money to cover these medical expenses or medicine expenses, this court has indicated earlier that this is not something which the court could accept.

14.At the same time, defendant says he is deeply remorseful and shameful as to what he has done.

15.Ms Yu, Solicitor for the defendant, agree that the present case is a burglary involving non-domestic premises and that the sentencing starting point is 30 months’ imprisonment.[1]

16.It was also conceded by Ms Yu that the starting point could be adjusted upwards if there are aggravating circumstances, such as previous convictions of similar nature.[2]

17.It is however submitted by Ms Yu that the present case was not a sophisticated burglary and that the defendant acted alone.  He used a screwdriver to prize open the iron gate of the restaurant as well as the cash register. 

18.She asks that this court be lenient on the defendant in sentencing.

Discussion

19.In passing sentence, this court has carefully considered all that was said on behalf of the defendant. 

20.As said by Ms Yu, it is well established that the appropriate starting point for burglary of non-domestic premises, in the absence of aggravating or extremely strong mitigation reasons, is that of 2½ years’ imprisonment.[3]

21.The defendant here acted alone.  Defendant here used a screwdriver in prising open the iron gate as well as the cash register.  The burglary is not therefore an opportunistic one.

22.This court accepts, however, that there is absence of sophistication in the commission of the offence. 

23.The value of property stolen also is relatively small and no one is expected to be within the restaurant at the time.

24.The defendant has six similar convictions in the past and the last one being in year 2004.  Since then, he has been convicted once of robbery and four times of shoplifting theft.  Defendant is clearly a persistent offender.  He has not learnt his lesson despite all these terms of imprisonment passed on him.  This is an aggravating factor and the sentencing starting point is enhanced by 3 months to 2 years and 9 months.

25.Further, the present offence was committed whilst he was on bail for another offence, a shop theft offence.   Again this constituted another aggravating factor, for which the sentence is further enhanced by 3 months, bringing the sentencing starting point to 3 years.

26.On the other hand, the defendant is a person in advance age, for this reason, this court is willing to lower the starting point by 3 months, bringing it back to 2 years and 9 months.

27.Having considered the circumstances of the case and all that was said on behalf of the defendant, the most valid and useful mitigating factor is that of his timely plea, for which he is entitled to full one-third sentencing discount.

28.The defendant is therefore sentenced to 22 months’ imprisonment for the charge.