HKSAR v. Ng Kai Ming, Joseph

DCCC 324/2019

[2019] HKDC 1446

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 324 OF 2019

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REASONS FOR SENTENCE

The defendant faces 6 charges of "Burglary". He pleaded guilty to Charges 2 to 6. The prosecution applied to leave Charge 1 in the court file; not to be proceeded against him without leave of court. I granted the application.

2.On 8 November 2018, the defendant burgled 2 residential flats situated at the same building in To Kwa Wan.  On 24 November 2018, he burgled 3 residential flats located within the same vicinity in Sham Shui Po.

Summary of Facts

3.The defendant committed all 5 burglaries with the same modus operandi.  The buildings at which the burgled flats were situated all had scaffolding erected.  He climbed up the scaffolding and prized open the windows of those flats.  When committing the offences in Charges 4 to 6, he disguised as a construction worker.

Charges 2 and 3 (8 November 2018)

4.The defendant entered the flat as particularized in Charge 2 and took away 1 "OMEGA" watch, 1 "PANERAI" watch, 2 small gold pendants, bags and diamond jewellery (valued at HK$164,288 in total).

5.The defendant entered the flat as particularized in Charge 3 and took away 1 "ROLEX" watch, 1 diamond ring, cash in the sum of HK$2,000 and cash in the sum of RMB6,000 (valued at HK$98,955 in total).

6.CCTV footage of various locations in the vicinity of the crime scenes captured the defendant climbing the scaffolding erected at Hung Ying Building[1], entering the rear lane and leaving the rear lane with a stolen bag between about 10:40 a.m. and 11:50 a.m. on 8 November 2018.

Charges 4 to 6 (24 November 2018)

7.The defendant entered the flat as particularized in Charge 4 and took away banknotes, coins, red packets and bank cards.

8.The defendant entered the flat as particularized in Charge 5 and took away watches, a waist bag, banknotes and red packets.

9.The defendant entered the flat as particularized in Charge 6 and took away 41 HK$500 notes.

10.CCTV footage of various locations on Lai Chi Kok Road captured the defendant climbing the scaffolding erected at the rear lane of the building situated at Nos.159-161 and leaving the main entrance of the building situated at Nos.167-169 between about 11:10 a.m. and 1:30 p.m. on on 24 November 2018.

Arrest

11.In the afternoon on 24 November 2018, police officers stopped the defendant, who dressed as a construction worker wearing a reflective vest and a yellow helmet, for enquiry at Sycamore Street in Mongkok.  Upon search, 2 screwdrivers and a large amount of cash were found in his trouser pockets.  He was also carrying a red recycling bag, which contained many banknotes in various currencies, coins, red packets and watches. 

12.Under caution, the defendant admitted that he had burgled some flats in the buildings situated at Nos.171-173 Lai Chi Kok Road earlier.  He also explained from where he climbed up the scaffolding and how he left the building after committing the burglaries.

13.Residents of the 3 flats particularized in Charges 4 to 6 identified their respective properties found in the defendant's possession.

Video-recorded Interviews

14.Regarding Charges 2 to 3, under caution, the defendant admitted, inter alia, that he needed money urgently to pay for his son's school fees.  About 11:00 a.m. on 8 November 2018, he walked by a building in Hung Hom with scaffolding erected and decided to burgle the flats inside.  He bought a pair of labour gloves and a screwdriver from a shop nearby and then climbed the scaffolding at the rear lane.  He entered the flats through open windows or by prizing open the windows with the screwdriver.  He then took the stolen properties to a shop in Mongkok and sold them.  He used all the proceeds to pay for his son's school fees.

15.Regarding Charges 4 to 6, under caution, the defendant admitted, inter alia, that in the morning on 24 November 2018, he bought a reflective vest, a yellow helmet and screwdrivers from a store in Sham Shui Po.  He drove his car to Sycamore Street and parked near No.14.  He then walked to the rear lane of the subject buildings and climbed up the scaffolding.  He stole a red recycling bag from the 1^st flat he burgled and put all the subsequent stolen properties inside.  He spent about 2 hours in committing the offences.  All the properties found on him were stolen from the flats he burgled.

Mitigation & Sentence

16.The defendant is 55 and has 8 conviction records, which included 24 theft-related offences. Of those 24 offences, 17 were burglary. His last conviction involved 3 burglary-related offences, for which he was sentenced to a total of 30 months' imprisonment in June 2015. He was released from prison in early August 2016. The defendant began his long history of "Burglary" convictions in 1985 when he was 21. Defence counsel Mr. So informed me that the defendant resides with his wife and their 23-year-old son, who is a university student.

17.In mitigation, Mr. So submitted that the defendant burgled flats with no occupants present, so no one was alarmed or injured. He was co-operative with the Police all along and admitted the offences in Charges 4 to 6 even before the burglaries were discovered. All the properties involved in Charges 4 to 6 were recovered. Mr. So has calculated the total value of cash involved in all 5 charges to be about HK$32,000; whereas watches and jewellery, about HK$255,000. A lengthy letter written by the defendant was also placed before me; its contents are duly noted.

18.Based on the defendant's admissions, he might have picked his target premises on the spot, but he clearly had some degree of advance planning. On both occasions, he purchased tools beforehand; and on 24 November 2018, he even dressed up as a construction worker.

19.The normal starting point for domestic burglary is 3 years' imprisonment. The defendant has an appalling criminal record, which renders him a "repeated offender". The sentences in the present case must carry a deterrent element. Committing a series of burglaries within a month is also an aggravating factor[2]. In other words, a higher than normal starting point is required.

20.Based on the nature and value of the stolen items, the mode in which the offences were committed and the 2 aggravating factors mentioned above, I consider 3.5 years' imprisonment to be the appropriate starting point for each charge. With the timely guilty plea, the sentence is reduced to 28 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 28 months' imprisonment for each charge.

21.Regarding totality, Mr. So cited HKSAR v Ali Tahir DCCC 631, 911 &1091/2016 & DCCC 111/2017 (Consolidated) in support of his submission that a global starting point of 5 years may be appropriate in the present case. With due respect, the defendant in that case had a clear record and the only evidence against him in relation to 2 out of the 5 charges was his own admission. In the present case, I consider a global starting point of 6 years to be appropriate for all 5 charges. With the timely guilty pleas, the overall sentence becomes 4 years. Hence, I order the sentences to run in the following manner :-

(i) Charges 2 and 3 concurrent;

(ii) Charges 4 to 6 concurrent; and 8 months concurrent with Charges 2 and 3.

Thus, arriving at a total prison term of 4 years.

22.The court can only do so much in deterring a repeated offender by way of a heavy penalty. Whilst the sentence must carry a deterrent effect, it cannot go out of proportion. I accept that there are limits in our penal system. If the defendant refuses to reform and to live a law-abiding life, that is his choice, and he will have to face the consequences.