HKSAR v. Lam Kin Choi

DCCC 438/2019

[2019] HKDC 1730

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 438 OF 2019

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Reasons for Sentence

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Charges

1.The Defendant pleads guilty to 3 counts of burglary (Charges 1, 2, and 4).  

Facts of the case

2.At around noon on 7 December 2017, Mr TAI Fu-wah (“PW1”), a manager of Regal Riverside Hotel, 34 – 36 Tai Chung Kiu Road, Shatin (the “Hotel”) was on duty and discovered that items were missing from the following places at the Hotel:-

(a) L’Eau Restaurant at 3^rd Floor (“Location 1”);

(b) Regal Terrance at 2^nd Floor (“Location 2”); and

(c) Scene Bar at Ground Floor (“Location 4”).

3.Upon inspecting the CCTV footages of the Hotel and subsequent checking, PW1 discovered the following:-

(a) At around 0225 hours on the same day, an unknown male wearing a black jacket, dark coloured long pants, black trainers and carrying a bag (later known as D) had stolen a tips box containing around HKD$4,000 cash and three keys from Location 1 (Charge 1);

(b) At around 0352 hours on the same day, the unknown male stole HKD$1,000 cash and one cashier master key (able to open the drawers of Location 4) from the cashier of Location 2 (Charge 2);

(c) At around 0640 hours on the same day, the unknown male opened the cashier of Location 4 and stole HKD$1,600 cash therein. The unknown male had also stolen a tips box containing around HKD$1,000 cash (Charge 4).

Follow-up Investigation

Statements from PW1

4.PW1 provided the following details for Location 1, 2 and 4:

(a) Location 1 operates from 0700 to 2300 hours and the tips box was placed inside a drawer. The door at Location 1 will be closed;

(b) Location 2 operates from 0800 to 1500 hours and from 1800 hours to 2300 hours. The door at Location 2 will not be closed;

(c) Location 4 operates from 1700 to 0100 hours and the tips box was placed inside a drawer. Location 4 has no doors;

(d) For all three locations, no visitors will be allowed in outside the operating hours. The lights of all four locations will be dimmed outside the operating hours.

(e) As the hotel operates 24 hours, there are no permanent signs erected which warn visitors from entering.

5.PW1 confirmed that D is not a member of staff of the Hotel.

Forensic Evidence

6.Fingerprints were lifted at the scene and, inter alia, two fingerprints lifted from the tips box at Location 1 belonged to D.

Arrest of D

7.Upon investigation, D was identified as the culprit of the incident.  On 12 December 2017, the police arrested D at the D’s mother’s residence in Wong Tai Sin. 

Exhibits seized

8.A house search was conducted at the said premises.  Among the items seized, there was an Octopus card found to be used to exit Shatin MTR at 2104 hours on 6 December 2017.  His clothing worn for the offences was also seized. 

TIC Record

9.D was in Hong Kong at the material time.

Conclusion

10.At all material times, D entered Location 1, 2 and 4 as a trespasser and stole the items as aforesaid. 

Mitigation

11.D is 33 years of age, of P. 3 education level.  He was unemployed at the time of arrest.  He had been sentenced for various criminal records for theft or theft-related offences from 2001 to 2010, once again in 2014, and the last one, for theft (committed in January 2018, i.e., after our present case).  His record shall not aggravate his sentence today. 

12.He was a chef but lost his job before arrest.  He is the sole breadwinner of the family.  His 5-year-old son has been diagnosed with a congenital heart disease soon after birth.  The disease causes irregular heartbeats and impaired mobility.  His medical expenditure is about $2,000 per month.  He has to be installed a monitor device in January 2020, another expense of about $2,000 per month. 

13.He is willing to pay full compensation, the sum of HKD7,600 for Charges 1, 2, and 4 out of his bail money.  I make an order to such effect. 

14.Counsel in mitigation asks me to consider a concurrent or mostly concurrent sentence due to the proximity of the time and the victimized locations.  

Sentencing guidelines

15.The Court of Appeal suggests 30 months as the starting point for non-domestic premises for a first offender of full age without aggravating factors (R v Wong Man [1993] 1 HKC 80).    

Sentencing the Defendant

16.I take 30 months as the starting point for each charge.  There is a one-third discount for the plea of guilty.  The sentence is 20 months.  I deduct 1 month from each charge for his full compensation.  His son’s medical condition and financial need were known to him soon after birth.  As such, it is not a mitigating factor.  The sentence is 19 months. 

17.The sentences shall be concurrent.