HKSAR v. Lee Kwok Wai, Andrew

DCCC 781/2019

[2020] HKDC 77

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 781 OF 2019

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of burglary of the “Silver Cafe”, contrary to section 11 of the Theft Ordinance[1].

2.Full particulars of the offences are set out in the facts admitted by the defendant today.

3.In summary the Silver Cafe, which is located at Shops 707-708 on the 7th Floor of Wah Kwong House, Wah Fu (1) Estate in Aberdeen, was open daily between 6 a.m. and 5 p.m.  Around 6 p.m. on 20 July 2019 Ms Yuen, one of the owners of the café, closed the café and secured the roller shutter. 

4.At around 5:30 a.m. the next morning when Ms Wong, a staff of the café, returned to work she found the roller shutter open and signs of ransacking inside the café. Ms Yuen returned to the café and discovered the glass door had been damaged and forced open and that about $2,000 worth of coins and about $3,500 worth of banknotes had been stolen from the drawer of the cashier counter.

5.CCTV footage captured the defendant entering the café at about 10:30 p.m. on 20 July 2019, wandering inside and going behind the cashier counter.  The defendant left the café after about eight minutes carrying a dark recycle bag and an orange plastic bag.

Arrest

6.The defendant was arrested on 26 July 2019.  Inside the defendant’s bag the police found two plastic bags of coins totalling $394. 

7.Upon search of the defendant’s home the police found $3,452.30 worth of coins, some wrapped in paper belonging to the café.  The police also found the orange plastic bag and the trousers worn by the defendant as seen on the CCTV footage.

Mitigation

8.In passing sentence, I have carefully considered the oral and written submission of Mr Ho, including that the amount stolen is relatively low and the defendant is truly remorseful[2]. 

9.I also take into account that by reason of the orders to be made for disposal of exhibits, namely the cash found on the defendant and in his home, the monetary loss to the café is less than $1,700[3]. No offer is however made by the defendant to compensate the actual loss to the café or for the damage caused to the café when the defendant forced open the glass door. 

Starting point

10.The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months’ imprisonment.

Aggravating features

11.The defendant has appeared in court on 28 occasions between 1987 and 2018 amassing a total of 43 convictions including convictions for robbery, burglary and theft.  The defendant has twelve convictions for burglary in 1987, 1990, 1993, 1995, 2011, 2013, 2014, 2015 and 2018. 

12.The defendant’s last three appearances in court in 2014, 2015 and 2018 were for offences of burglary for which the defendant received sentences of 28 months, 26 months and 21 months’ imprisonment.  The defendant was last released from prison on 19 September 2018[4].

13.I am satisfied the defendant is properly to be regarded as a persistent offender. I am satisfied an enhancement of 6 months is appropriate thereby increasing the starting point to 3 years’ imprisonment[5]. 

Commission of offences on bail

14.The defendant committed the burglary when he was on police bail also for burglary committed in the same month, July 2019[6].  Mr Guan informs the court that case is still under police investigation. 

15.Commission of offences whilst on bail is an aggravating feature of sentence.  In the circumstances I enhance the starting point by a further 3 months to 3 years and 3 months’ imprisonment. 

16.Giving the defendant full credit for his plea of guilty he is convicted and sentenced to 2 years and 2 months’ imprisonment.

[1] Cap 210.

[2] See §§5 & 7 of the skeleton submissions on mitigation.

[3] Money specifically identified by the café is returned to the café under section 102 of the Criminal Procedure Ordinance, Cap 221 and the other coins seized by the police are paid to the café by way of compensation under section 73 of the Criminal Procedure Ordinance. 

[4] See §6 of the antecedents.

[5] See for example HKSAR v Sha Ka Lun CACC 239/2016 and HKSAR v Lui Yuen Shun CACC 160/2016.

[6] See §8 of the summary of facts as read with §6 of the antecedents.