HKSAR v. Lam Wing Leung

DCCC 254/2020

[2020] HKDC 1054

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.254 OF 2020

________________________

________________________

________________________

Reasons for Sentence

________________________

Charges

1.D pleads guilty to 2 counts of burglary (Charges 1 and 3).

Facts for Charge 1

2.PW1 ran “Cheuk Ngai Salon” at the first floor on Clear Water Bay Road, Kowloon Bay (the “Salon”). The Salon was burgled in November 2019 with its glass door shattered. Thus, PW1 installed a CCTV and replaced the glass door with a temporary wooden door.

3.Around 7:30pm on 11 December 2019, PW1 left the Salon after having locked its door. He returned the next day and found it burgled again. The door was opened with scratch marks on the door’s floor area. The CCTV was unplugged from its socket. The cashier counter was ransacked with two ornaments (total value HK$3,000, later recovered), two red packets containing a total of HK$40 cash, and an envelope containing a HK$50 cake coupon were stolen. He later recovered the above red packets, envelope and ornaments in the nearby staircase, but the above cash and the cake coupon were missing. There were metal bars wrapped in plastic wraps in the rubbish bin outside of the Salon.

4.The Salon’s CCTV showed a man (later confirmed to be D) walked to the Salon around 5:25 am on 12 December 2019.  He carried a black slant bag and a rod -like object.  He forced open the Salon’s door by a series of pushing, ramming with a rod and kicking.  He entered the Salon and left about 2 minutes later.  Then, he re-entered the Salon but the footage ended as the CCTV was unplugged.

5.D resided in a flat in Hung Ngok House, which was about 550 m walking distance from the Salon.  The House’s CCTV showed that at 3:09 am, he had entered the lift on Floor 19 and exited on the Ground Floor.  He returned at 5:49 am.

Facts for Charge 3

6.PW2 was the manager of “KARAYAMA” at the ground floor on Ching Tak Street (the “Restaurant”). It was a restaurant without any door at the entrance. When the Restaurant was closed, there was only a fabric strip blocking the entrance, but its alarm would ring if someone entered into the Restaurant area.

7.In the early hours of 15 December 2019, the Restaurant’s alarm rang.  PW4 (the security guard) went to the Restaurant and saw D inside the Restaurant.  D claimed to be a staff of the Restaurant but could not turn off the alarm.  D produced his identity card, revealing his surname as “Lam”.  PW4 went to the control room to find the telephone number to contact the Restaurant’s responsible person to turn off the alarm.  The responsible person denied having any employee surnamed “Lam”.  PW4 returned to the Restaurant and found D gone. 

8.In the cashier counter, a safe (valued at HK$4,000) containing HK$25,000 cash was stolen and the lock of the cashier machine was prized (repair cost around HK$4,000).   A trolley of the Restaurant (valued at around HK$250) was also stolen.  The Restaurant’s CCTV showed D’s activities inside the Restaurant until it was unplugged. 

9.D resided at about 1.5 km walking distance from the Restaurant.  The House’s CCTV showed him in the same outlook as shown in the Restaurant’s CCTV.

Arrest

10.At 7:30am on 24 December 2019, police officers arrested D at his home.

Offences

11.On 12 December 2019, D, having entered the Salon as a trespasser, stole therein two ornaments, two red packets containing cash of a total of $40 Hong Kong currency and one cake coupon (Charge 1).

12.On 15 December 2019, D, having entered the Restaurant as a trespasser, stole therein one safe, cash of $25,000 Hong Kong currency and one trolley (Charge 3).

Mitigation

13.D is now 36 years of age.  He was a decoration worker before arrest.  He has a daughter, aged 14 months now, by his girlfriend, who is in custody in a drug case.  The daughter is in the care of a foster family.  He committed the present offences as he was under-employed in the period of intense social events. 

14.He had a history of dishonesty offences but his last discharge from prison therefor could be dated back to 6 years 10 months before the present offences. He committed no other offences in that period either.  Given this break, I do not regard his previous records as an aggravating factor.   

15.Before sentence he managed to fully compensate the victimized shops for loss and damage, i.e., $90 on Charge 1 and $33,250 on Charge 3. 

Sentencing guidelines

16.In R v Wong Man [1993] 1 HKC 80, the Court of Appeal states that the proper starting point for non-domestic premises would be 2 years 6 months for a first offender of full age in the absence of aggravating factors. 

Sentencing D

17.I take a starting point of 2 years 6 months on Charges 1 and 3 alike.  There is a one-third discount for his pleas of guilty.  I reduce the sentence by 2 months for the full recovery of property and/or compensation to the victimized shops. The sentence is 18 months. 

18.Totality wise, I order 3 months of Charge 3 to be consecutive to Charge 1.  The total sentence is 21 months.