HKSAR v. Lui Chun Kit (also known as Lui Lung Po)

DCCC 1107/2018

[2019] HKDC 1335

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1107 OF 2018

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REASONS FOR SENTENCE

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1.The defendant was convicted on his own plea and agreement to the Summary of Facts to a charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

Facts

2.At around 9:35 pm on 27 September 2018, PW3 returned to Flat B, 10/F, King Hing Building, 54 Argyle Street, Mongkok (the “flat”) from work.  The flat had five rooms which were labelled as B1 to B5 respectively, PW3 stayed in Room B3 at the material times. 

3.The iron gate of the flat was closed but the main wooden door was open.  PW3 could not open the iron gate but through the grille of the iron gate, PW3 saw the defendant coming out from B1.  He asked the defendant to open the iron gate and the defendant did not respond.  He went to the toilet instead.  PW3 requested for assistance from the police.  When the police arrived, the defendant acceded to their request and opened the iron gate.  It was then revealed that something was put behind the iron gate to prevent it from opening.  PW3 returned to Room B3 after he had gained access to the flat. 

4.Later, PW2 and PW1, ie resident and former resident of Room B1 in the flat, returned and they found that the padlock of Room B1 had been prised open and B1 had been ransacked.

5.Upon checking, a jade pendant (valued at about $100) and a black coins bag (valued at about HK$30) containing about $100 worth of coins were found missing from Room B1. 

6.Room B4 was searched where these stolen properties were found and the defendant was arrested.

7.At all material times, the defendant was not authorized to enter Room B1.

Criminal records

8.The defendant had seven court appearances with convictions on 16 charges of which 10 relate to dishonesty.  There is also one similar conviction in the year 1993.  His last conviction was attempted theft in the year 2010.

Mitigation

9.The defendant is aged 51.  He was born in the Mainland. He is now single and he has received education up to Primary 4 level. 

10.At the time of arrest, his son who suffered from mental illness lived with the defendant in Room B4 in the flat.  The defendant has for a long time lost contact with his parents, ex‑wife and three other children.  At the time of arrest, he was unemployed.

11.As submitted by defence counsel, the value of the goods stolen by the defendant in the present case are of relatively low value and they have all been recovered. 

12.He also submitted the defendant suffered from mental illness over the last 20 years.  As a result, he was unable to work and had been surviving on CSSA at $6600 per month. 

13.A medical report from Pamela Youde Nethersole Eastern Hospital dated 30 April 2019 on the defendant was handed up, which showed that the defendant suffered from paranoid schizophrenia and stimulant-induced schizophrenia-like psychotic disorder and was receiving treatment at the hospital. 

14.It is also said that his son was being treated for the same problem at the same hospital and his son has been admitted to the hospital since the defendant’s remand.

15.Defence counsel further submitted that PW1 had chased the defendant’s sister for payment of outstanding rental for his room and as well as the repair fee for the lock of Room B1.  He says that the defendant is now remorseful as to what he has done and he has admitted his guilt at the earliest available opportunity after he was arrested.  He asked this court for the sentencing discount of which the defendant is entitled.

Discussion

16.According to section 11(4) of the Theft Ordinance:-

“Any person who commits burglary shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 14 years.”

17.In this case, the premises in question is a room within the flat and it is a residential premises.  In fact, the defendant himself lived in one of the other rooms in the flat.

18.The Court of Appeal in Chan Yui Man, CACC 36/1988 laid down sentencing guideline for burglary of domestic premises.  It was held that 3 years’ imprisonment was the proper starting point for a first offender of full age for burglary in domestic premises.  It is also subject to adjustment upon any aggravating or mitigating factor.

19.In this case, the defendant acted alone.  There is, however, evidence of forcible entry as the padlock to Room B1 had been prised open. There was no violence in this case nor was there any confrontation.

20.At the material times, the premises was not occupied and the mode of burglary was not sophisticated nor was there any evidence of use of machinery.  The level of planning, if any, and sophistication in the case is very low.

21.This court noted that the defendant had over the last 35 years 10 convictions relating to dishonesty and the last one being in 2010.  However, on this occasion, this court is not going to enhance the sentencing starting point by reason that he is a persistent offender.

22.As submitted, all properties stolen were recovered and they were of small value.  In view of the amount of stolen properties and the lack of sophistication, it has been said that it has been built in the 3 years’ sentencing starting point certain level of planning and sophistication, which is absent in this case.  Coupled with the fact that the amount of stolen properties are of small value and have been recovered, this court will adopt a sentencing starting point of 2 years and 6 months in this case.

23.The court has also considered all mitigation submitted on behalf of the defendant and finds that the most valid mitigating ground being his timely guilty plea, of which he is entitled to full one-third sentencing discount.  Accordingly, the defendant is sentenced to 20 months’ imprisonment for this charge.