HKSAR v. Lau Kwok Siu

DCCC 835/2019

[2020] HKDC 181

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 835 OF 2019

____________

__________________

REASONS FOR SENTENCE

__________________

1.The defendant pleads guilty to two charges of theft, contrary to section 9 of the Theft Ordinance[1] (charges 1 & 3) and one charge of burglary, contrary to section 11 of the Theft Ordinance (charge 2).

2.Full particulars of the offences are set out in the facts admitted by the defendant. In summary between 29 June 2019 and 15 July 2019 the defendant stole two backpacks (charges 1 & 3) and broke into the drawer of a restaurant reception desk and stole mooncake redemption vouchers (charge 2). 

Charge 1 - theft

3.At about 8 a.m. on 29 June 2019 Ms Agnes Lee went to Café Killiney in the Prudential Centre, Nos. 216-228 Nathan Road in Yau Ma Tei. 

4.Ms Lee sat next to the entrance of the café and placed her backpack on the bench close to the entrance.  When Ms Lee was not paying attention to her backpack the defendant picked up the backpack and walked away.  The defendant’s actions were captured on CCTV.

5.The contents of Ms Lee’s backpack included Ms Lee’s identity card, Home Visit Permit, driving licence, Octopus card, five credit cards, three ATM cards, an iPhone, about $5,000 cash and some jewellery.   The total value of the stolen items was about $48,799.

Charge 2 - burglary

6.At about 10 a.m. on 4 July 2019 Mr Yip, the manager of Yat Tung Heen restaurant in the Eaton Hotel, No. 380 Nathan Road in Yau Ma Tei, returned to work.  Mr Yip discovered that the padlock of the drawer of the reception desk was damaged and thirty-seven mooncake redemption vouchers valued at about $14,356 were missing. 

7.CCTV footage captured the defendant at 8:11 that morning breaking the padlock with a pair of scissors, stealing the vouchers and leaving.  The night before the padlock was not damaged and the scissors were not kept in the reception desk. 

Charge 3 - theft

8.At about 5:11 p.m. on 15 July 2019 Ms Emeda Choi, a staff member of a supplier of “Watsons”, was putting goods on a display rack inside the “Watsons” at Nos. 19-21 Jordan Road in Yau Ma Tei. 

9.Ms Choi placed her backpack on the floor.  While Ms Choi was preoccupied putting the goods on the display rack the defendant picked up the backpack and walked away.  The defendant’s actions were again captured on CCTV.

10.Ms Choi’s backpack contained her wallet, identity card, ATM card and about $300 cash.   The total value of the stolen items was about $2,300.

Arrest

11.The defendant was arrested on 15 September 2019.  Under caution the defendant, inter alia, admitted committing the three offences out of financial difficulty and that he sold the stolen items and spent the proceeds on food. 

Mitigation

12.In passing sentence, I have carefully considered the oral and written submissions of Mr Yeung, including that the defendant committed the offences out of greed so he could have more money to spend on his daughters when he visited them[2]. 

Starting point

Theft

13.Mr Yeung submits that the two thefts were opportunistic crimes[3].  I do not agree.  The defendant was clearly looking out for property to steal as can be shown by the fact he committed three offences within 17 days.

14.Theft of unattended bags, as Mr Yeung correctly points out, is to be equated with pickpocketing[4].  

15.In HKSAR v Ngo Van Huythe Court of Appeal confirmed the guideline sentence for pickpocketing after trial is 12 to 15 months' imprisonment for a first offender, where there are no aggravating features[5]. 

16.In determining where in the range of 12 to 15 months a sentencing court should commence will depend on the facts of the case including the circumstances of the theft; the value of the property stolen; the age or vulnerability of the victim and the expertise used in the theft.  The sentencing court will however need to avoid double counting by taking into account a matter later considered as an aggravating feature[6]. 

17.I am satisfied a starting point of 15 months’ imprisonment is appropriate for charges 1 & 3.

Burglary

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

19.Screen captures from the CCTV footage showing the reception desk have been submitted to court.  One of the screen captures shows the defendant walking out of the restaurant.  Mr Lai informs the court that the restaurant was open at the time for cleaning work to take place. 

20.Mr Yeung explains that the defendant out of curiosity looked in the kitchen and took the pair of scissors which he used to open the drawer.  The defendant is not however charged with burgling the restaurant. 

21.In the circumstances I am satisfied a lower starting point is appropriate.  Taking into account the defendant broke open the drawer and took vouchers valued at $14,356, I am satisfied the appropriate starting point for charge 2 is 15 months’ imprisonment.  

Aggravating feature

22.The fact an accused is a persistent offender is an aggravating feature.  The defendant has 6 previous convictions with 2 for theft and 1 for burglary.  Most convictions are since 2016.  The defendant last appeared in court on 7 January 2019 when he was sentenced to 10 months’ imprisonment for burglary.  The defendant was discharged from prison on 10 June 2019[7]. 19 days later the defendant committed the first of the three offences.

23.By reason of the defendant’s persistent offending I am satisfied the starting point for each offence is to be enhanced by 3 months to 18 months’ imprisonment. Giving the defendant full credit for his pleas of guilty reduces the sentence on each charge to 12 months’ imprisonment.

Totality

24.The three offences are separate and distinct for which consecutive sentences are appropriate.  I am satisfied a total sentence of 2 years’ imprisonment properly reflects the defendant’s criminality on the three charges and takes into account the defendant’s personal circumstances and the seriousness of the offences, including the total amount stolen in the three offences[8].  

Sentence

25.The defendant is convicted and sentenced as follows:

CHARGE 1 – 12 MONTHS’ IMPRISONMENT;

CHARGE 2 – 12 MONTHS’ IMPRISONMENT WITH 6 MONTHS CONSECUTIVE AND 6 MONTHS CONCURRENT TO CHARGE 1;

CHARGE 3 – 12 MONTHS’ IMPRISONMENT WITH 6 MONTHS CONSECUTIVE AND 6 MONTHS CONCURRENT TO CHARGES 1 & 2.

[1] Cap 210.

[2] See §§4 & 6 of the defendant’s written mitigation.  This is contrary to what the defendant told the police that he spent the proceeds of sale on food. 

[3] See §7 of the defendant’s written mitigation.

[4] See §10 of the defendant’s written mitigation.  Also see HKSAR v Aguilar Garcia Milner Javier CACC 485/2012.

[5] [2005] 2 HKLRD 1.

[6] See HKSAR v Chiu Suet Yee, Angel CACC 105/2010 at §§10-12.

[7] See §F of the antecedent statement.

[8] See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 and HKSAR v Pau King Kong [2013] 3 HKLRD 676.