HKSAR v. Wong Chi Fai and Another

DCCC 190/2020

[2020] HKDC 1109

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 190 OF 2020

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REASONS FOR SENTENCE

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1.D1 faces 3 charges of "Burglary" (Charges 1 to 3). D2 faces 1 charge of "Burglary" (Charge 5). D1 and D2 also face a joint charge of "Burglary" (Charge 4). They each pleaded guilty to the respective charges.

Summary of Facts

Charge 1 (against D1)

2.About 10:00 p.m. on 6 October 2019, a staff member of a fast food restaurant situated at Ground Floor, Hong Wo House, Cheung Hong Estate, Tsing Yi ("Fairwood") secured all entrances and left the restaurant.

3.About 5:45 a.m. on 7 October 2019, another staff member of Fairwood returned to the restaurant and found the glass door of the rear entrance broken.  An empty cash register (valued at $3,000) was found missing.  The repair costs for the glass door were $2,000.

4.CCTV footage of Fairwood captured a male wearing a cap, a surgical mask and gloves entering the restaurant at 3:25 a.m. and leaving at 3:36 a.m. on 7 October 2019.

Charge 2 (against D1)

5.About 11:00 p.m. on 8 October 2019, a staff member of a grocery store situated at the Mayfair Gardens Shopping Arcade in Tsing Yi ("759 Store") secured all entrances and left the shop.

6.About 8:35 a.m. on 9 October 2019, the manager of 759 Store returned to the shop and found 4 drawers having been prized open.  There were also signs of ransacking.  A safe (valued at $1,000) which contained cash in the sum of $15,548.40 and 84 SIM cards (valued at $1,800 in total) was found missing.  The repair costs for the drawers were $1,000.  A crowbar was found outside the shop.

7.CCTV footage of 759 Store captured a male wearing a cap, a surgical mask and gloves entering the shop from its rear entrance at 3:41 a.m. and leaving at 4:59 a.m. on 9 October 2019. A male customer of similar built was in the shop about 6 hours earlier when it was open for business.  The footage captured him opening the rear entrance.

Charge 3 (against D1)

8.About 10:30 p.m. on 20 October 2019, a staff member of a fast food restaurant situated at 3^rd Floor, Cheung Fat Plaza, Cheung Fat Estate, Tsing Yi ("Super Congee") secured all entrances and left the restaurant.

9.About 6:00 a.m. on 21 October 2019, the manager of Super Congee was informed that ransacking signs were found in the restaurant.  He returned to Super Congee around 6:25 a.m. and found the rear door and the safe having been prized open.  Cash in an approximate sum of $20,000 was found missing.  A cardboard box was found covering a CCTV camera and 2 crowbars were found inside the restaurant.

10.CCTV footage of Super Congee captured a male wearing a cap, a surgical mask and gloves entering the restaurant through the rear door at 2:04 a.m. and leaving at 3:47 a.m. on 21 October 2019.

Charge 4 (against D1 and D2)

11.About 11:15 p.m. on 24 October 2019, a staff member of a convenience store situated at Ground Floor, Luen Hei House, Kwai Luen Estate, Kwai Chung ("7-Eleven") secured all entrances and left the shop.

12.About 3:15 a.m. on 25 October 2019, PC 9902 (PW13) saw D1 walking around multiple times in the vicinity of 7-Eleven.  At the same time, Ag Sgt Chan (PW11) saw D2 holding a mobile phone, walking up and down the street multiple times in the vicinity.  D2 was constantly looking around.

13.About 4:05, PW13 saw D1, who was wearing a surgical mask and gloves, prizing the rear entrance of 7-Eleven with a crowbar.  D2 was across the road from 7-Eleven looking towards Luen Hei House.  PW11 saw D2 wearing a wireless headset on his left ear and appeared to be talking to someone on the phone.

14.About 4:35, D1 prized open the rear entrance of 7-Eleven.

15.About 4:50, PC 25953 approached 7-Eleven.  D1 was leaving via the rear entrance.  He threw a cap, a surgical mask, a pair of gloves and a headset on the ground.  D1 was then intercepted.  Upon search, cash in the sum of $1,520 and a mobile phone were found on him.

16.At the same time, PW11 approached D2 and saw him talking on the phone with the wireless headset.  D2 was intercepted.  Upon search, a mobile phone and a wireless headset were found on D2.

17.D1 and D2 were both arrested.  Under caution, D1 admitted that he was short of money, so he burgled 7-Eleven.  The cash found on him was stolen from 7-Eleven.  Billy was acting as a lookout nearby.  D1 would give him a share of the proceeds.

18.A staff member of 7-Eleven returned to the shop and found the lock of the rear entrance broken.  The repair costs were about $10,000.  The safe in the shop had prize marks.  Upon checking, cash in the sum of $1,520 was found missing.  A crowbar and a torch were found in the shop.

19.CCTV footage of 7-Eleven captured a male wearing a cap, a surgical mask and gloves entering the shop through the rear entrance at   4:30 a.m. and leaving at 4:47 a.m. on 25 October 2019.

20.Call records of D2's mobile phone revealed that D1 and D2 communicated before and during the time when 7-Eleven was burgled.  They each called the other twice.  The 4 phone calls lasted from 37 seconds to almost 101 minutes.

D1's Admissions

21.In his video recorded interviews, D1 admitted that he committed the burglaries particularized in Charges 1 to 4.

22.In respect of Charge 1, D1 admitted that he used a hammer to break open the glass of the rear entrance of Fairwood.  He took the cash register away.  Since it contained no money, he threw it away.

23.In respect of Charge 2, D1 admitted that around 9:00 p.m. on 8 October 2019, he entered 759 Store pretending as a customer.  He placed a piece of cardboard at the door latch of the rear entrance to prevent it from closing.  About 3:00 a.m. on 9 October, he entered the shop through its rear entrance.  He took away the safe.  It contained cash and some SIM cards.

24.In respect of Charge 3, D1 admitted that he prized open the rear door of Super Congee with 2 crowbars.  He entered the restaurant and covered a CCTV camera with a cardboard box.  He prized open the safe and used a trolley to move the cash to his vehicle.

25.In respect of Charge 4, D1 admitted that he prized open the rear entrance of 7-Eleven with a crowbar.  He took some cash from the shop.  He called D2 around 3:00 a.m. asking him to be a lookout.

Charge 5 (against D2)

26.About 6:20 p.m. on 10 November 2019 (Sunday), Mr. Hussain (PW7), a security guard of the Lohas Park Phase 7 construction site in Tseung Kwan O ("the Site"), saw D2 moving rolls of copper wire from the Site to a metal trolley placed on a pavement outside the Site.  The metal trolley was already loaded with multiple rolls of copper wire.  PW7 asked D2 for his worker identification.  D2 said he left it in his vehicle.  PW7 followed D2 to the roadside and D2 said his vehicle had not arrived yet.  D2 returned to the pavement to retrieve the metal trolley and continued to walk away.  PW7 reported the matter to his supervisor.  The Police was alerted.

27.When the Police arrived, D2 could not produce any worker identification.  He claimed that he was instructed by a male called Brother Kuen to go to the carpark of the Site to take away rolls of copper wire.  Brother Kuen was working for Hip Hing Construction.  D2 revealed Brother Kuen's phone number.

28.The Police discovered that the metal trolley (valued at $300) and the 11 rolls of copper wire (valued at $16,500 in total) placed on it all belonged to China Construction.  All those items were originally placed at the carpark of the Site.  Hip Hing Construction was not a contractor of the Site.  No removal of copper wires from the Site was permitted on 10 November 2019.  No employee of Hip Hing Construction was named Brother Kuen or used the phone number given by D2.

Mitigation

D1

29.He is 26 and has 6 conviction records, which included 6 "Theft" offences and 2 "Blackmail" offences.  His counsel Ms. So informed me that D1 resides with his parents and elder brother.  He was a construction worker until June 2019, earning $16,000 per month.  In mitigation, Ms. So submitted that D1 committed the offences due to financial difficulty.  He is remorseful.  His family is supportive and his mother is prepared to compensate the victims involved.

D2

30.He is 26 and has a clear record.  His counsel Mr. Hui informed me that D2 resides with his parents.  He was a part-time cook earning $5,000 per month.  After he was arrested for Charge 4, D2 was dismissed by his employer.  In mitigation, Mr. Hui submitted that in Charge 4, D2 was acting as a lookout.  He is now remorseful and has learned his lesson.

Sentence

D1 (Charges 1 to 4)

31.The normal starting point for non-domestic burglary is 2.5 years' imprisonment. D1 committed 4 burglaries within 1 month; 3 in Tsing Yi and 1 in Kwai Chung. Committing a series of burglaries is an aggravating factor[1]. In Charge 4, D1 and D2 acted in concert, which is also an aggravating factor. D1 has no previous burglary convictions, but he is no stranger to theft offences.

32.On the other hand, as confirmed by prosecuting counsel Ms. Fung, the evidence against D1 in Charges 1 to 3 came solely from his own admissions. Some discount should be given to reflect this[2]. Today, Ms. Fung confirmed that compensation has been made to the respective victims in Charges 1 to 4 by D1's mother. Some discount should be given to reflect this as well.

33.In my view, the aggravating factors and mitigating factors more or less even each other out. On this basis, I consider 2.5 years' imprisonment to be the appropriate starting point for each charge. With the timely guilty plea, the sentence is reduced to 20 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D1 to 20 months' imprisonment for each charge.

34.Bearing in mind the totality principle, I consider a global starting point of 4.5 years to be appropriate for all 4 charges. With the timely guilty pleas, the overall sentence becomes 36 months. Hence, I order the sentences to run in the following manner :-

(i)  5 months in Charge 2 consecutive to Charge 1;

(ii)  5 months in Charge 3 consecutive to Charges 1 and 2; and

(iii)  6 months in Charge 4 consecutive to Charges 1 to 3.

Thus, arriving at a total prison term of 36 months.

D2 (Charges 4 and 5)

35.In Charge 4, D1 and D2 acted in concert, which is an aggravating factor. It matters not who did what. The culpability of acting as a lookout is the same as the person breaking into the shop to steal. D2 committed the offence in Charge 5 whilst on police bail. It is also an aggravating factor.

36.D2 has a clear record. For Charge 4, I consider 2.5 years' imprisonment to be the appropriate starting point. With the timely guilty plea, the sentence is reduced to 20 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D2 to 20 months' imprisonment for this charge.

37.For Charge 5, I adopt a starting point of 33 months' imprisonment since D2 committed this offence whilst on police bail. With the timely guilty plea, the sentence is reduced to 22 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence D2 to 22 months' imprisonment for this charge.

38.Bearing in mind the totality principle, I consider a global starting point of 3 years to be appropriate for both charges. With the timely guilty pleas, the overall sentence becomes 24 months. Hence, I order 2 months in Charge 4 to run consecutive to Charge 5. Thus, arriving at a total prison term of 24 months.