HKSAR v. Lam Chor Yuen

DCCC 229/2020

[2020] HKDC 474

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 229 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to a charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

Summary of facts

2.This case of burglary concerns a restaurant which is located at Shop A and Shop B of Ground Floor, No 180 Portland Street, Mongkok. 

3.At around 4 am on 8 December 2019, the owner of the shop (PW1) and her staff left Shop A after locking its doors.  No cash was kept in Shop A.  Around 2 pm on 9 December 2019, PW1 returned to Shop A and found that its doors were prised open.  The repair cost of this was later found to be about HK$2,000. 

4.PW1 found that Shop A was ransacked and two bottles of alcohol were stolen and the total value was HK$10,500.  Inside a refrigerator placed inside Shop A, there was found the defendant’s wallet.  Inside the wallet, there were contained the defendant’s identity card and also HK$1,600 cash. 

5.Subsequently, the CCTVs installed in the building showed that a man wearing a grey hoodie and camouflage pattern trousers (later confirmed to be the defendant) entered the building.  Between 4:25 pm and 7:21 pm on 8 December 2019, the defendant was seen there searching the counter, kitchen and various areas of Shop A.  At the later part of his ransacking, he took out a bottle of the wine from the cabinet and drank from it.  The defendant stayed there for about 3 hours before he left the building.  The defendant’s facial appearance was captured by the CCTV when he was leaving the building. 

6.On 3 January 2020, the defendant was recognized and arrested by a police officer.  At the time of the arrest, the defendant was holding a temporary identity card document issued by the Immigration Department.  Subsequently, a grey hoodie and a pair of camouflage pattern trousers resembled the one shown in the CCTV was found in the defendant’s residence. 

The defendant’s background and mitigation

7.The defendant is single, aged 42.  He worked as a casual transportation worker and was unemployed for a few months.  He said that he was in financial difficulty at the time of the arrest. 

8.The defendant has a list of previous criminal records from 1989 to 2018.  Altogether, he has 22 previous criminal record and 17 of them related to dishonesty offences.  Most of them are actually theft and 3 of them were burglaries.

9.On 4 July 2018, the defendant was convicted of possession of Part I poison and was sentenced to 2 months’ imprisonment suspended for 18 months.  He committed the present offence on 8 December 2019; therefore, he was in breach of this suspended sentence.  In other words, he committed the present offence while he was still in this suspended sentence. 

10.Counsel for the defendant submitted in his written mitigation as well as in his oral mitigation today that the most effective mitigation for the defendant was his timely guilty plea.  The defendant asked for leniency of the court by, firstly, not to enhance the sentence in a large scale and also to adjust the activation of the suspended sentence. 

Consideration of sentence

11.There are quite clear sentencing guidelines set out by the Court of Appeal in relation to the offence of burglary.  Regarding non-domestic premises, unless there are special aggravating or mitigating factors, the usual starting point for the offence of a non-domestic burglary is 30 months’ imprisonment.  The authorities in question are R v Wong Man [1] and also AG v Lui Kam Chi [2].

12.The starting point can be adjusted upward if there are aggravating circumstances like:

(1) the offence is carefully planned and skilfully executed involving the use of heavy instruments or equipment;

(2) the offence is committed by two or more people;

(3) the offence targeted a substantial premises and involved substantial properties;

(4) the offender is a professional burglar and not just an opportunist;

(5) the offender has previous convictions, particularly previous convictions of similar nature; and

(6) the offender commits multiple offences.

13.In the present case, the defendant did not commit the offence with another person nor was it shown that the burglary was carefully planned or skilfully executed.  However, the defendant was a repeat offender.  He has committed 17 dishonesty related offences before and 3 of which were burglaries.  Obviously, the previous convictions and sentence were not able to deter the defendant from further offending.  It is the duty of the court to impose a sentence of deterrence if it is shown that the defendant is a recidivist particularly for similar offences. 

14.Having considered all the circumstances, including the facts of the case, the background and mitigation of the defendant and the relevant authorities, I adopt 30 months’ imprisonment as the starting point.  In view of the defendant’s repeated convictions of similar offences, I will enhance the starting point by 3 months to 33 months’ imprisonment.   Given the defendant’s timely plea of guilty, he is entitled to the full one-third discount and the sentence is reduced to 22 months’ imprisonment.

15.In respect of the suspended sentence imposed on the Part I poison convicted in 2018, I find no reason why I should not activate the suspended sentence.  Thus the 2-month suspended sentence will be activated, which will be served consecutively to the sentence imposed on the burglary charge.