HKSAR v. Li Ka Fai

DCCC 134 & 533/2020 (Consolidated)

[2020] HKDC 1125

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 134 & 533 OF 2020 (Consolidated)

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REASONS FOR SENTENCE

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1.Within the space of 10 months (16 December 2018 to 29 October 2019), the defendant had committed 5 commercial burglaries and one theft. He pleaded guilty before me to 5 counts of burglary (Charges 1, 3, 4, 5 and 8) and one count of theft (Charge 2) while his other two charges of attempted theft and theft (Charges 6 and 7) are left on court’s files.

2.The first burglary occurred on 16 December 2018 in the office of a bus company in Mui Wo, Lantau Island where the windows had been prized open and the following items belonging to the company had gone missing:

a.  One notebook computer;

b.  One staff identity card;

c.  One card reader;

d.  One computer transformer;

e.  One computer bag.

3.Police found a packet of lemon tea with a straw in it left on the desk in the office and obtained DNA from the surface of the straw.

4.About 9 months later on 21 September 2019, the defendant was arrested in connection with the above-mentioned burglary. The government chemist confirmed that the defendant’s DNA matched those found at the scene of the crime (Charge 1). 

5.Unknown to the police, the defendant by then had already committed two more offences. A stealing from a taxi about a month before his arrest and then followed by a burglary 3 days later.

6.On the night of 24 August 2019, a taxi driver parked his taxi outside a public toilet in Man Fai Street, left his bag on the front passenger seat and took a nap.

7.He woke up a few hours later only to find his bag missing; also gone with it were his wallet, ID card, driving license, home visit permit, a bank card and cash of about $20,000.    

8.A check on the car camera of the taxi revealed that the defendant earlier on had opened the front passenger door and took away the bag (Charge 2).

9.Three days later on 27 August, the defendant was captured by the CCTV of a supermarket situated at Fenwick Pier in which he was seen forcing open the back door to get in, and he got away with $8,130 in cash taken from the till and a laptop computer worth $5,000 (Charge 3).

10.The arrest in September did not prevent the defendant from committing further offences; he was not taken into custody by the police on that occasion, and so he was out again to do crimes – 3 more burglaries – until he was apprehended once again on 29 October 2019.

11.Only two days after his arrest by the police, on 23 September he was up to his old trick again. This time he burgled a massage shop in Discovery Park in Castle Peak Road and got away with two bags of money – one with cash of $18,537 and the other a thousand odd dollars, two cash cheques and a mobile phone.

12.The CCTV of the shop captured the act of stealing of the defendant who was seen forcing open the glass door with his bare hands, first he took away a mobile phone lying on the reception counter and then picked up a pair of scissors from the counter to pry open a drawer to get the bags. The whole episode lasted for 3 minutes (Charge 4).

13.Five days later on 28 September, this time he targeted a restaurant situated at Shop H1, Central Pier, Central. The surveillance cameras of the restaurant captured the action of the defendant – he pulled  open the glass door and got away with a black object and a tip box.

14.The restaurant suffered losses including an iPad worth $5,000, a thermometer worth over a thousand dollars, $2,000 in cash and a tip box with $30 in it (Charge 5).

15.A month later on 29 October, he burgled yet another shop- selling health care products- situated at the basement of Shun Tak Centre, Sheung Wan.

16.A saleslady of the shop returned to work the following day, discovered that the shop had been burgled and upon a check on the losses, she found cash of $552 missing.

17.CCTV footages depicted that the defendant entered the shop by opening the gate and rummaged around the cashier counter (Charge 8).

18.The defendant was arrested later in the day. Under caution, he admitted that he used a screwdriver to pry open the entrance door and went in to steal; he took the cash from the cash register and threw away the screwdriver into the sea outside Shun Tak Centre.

19.The defendant, now aged 45, has an appalling record dating back as early as 1990. His first conviction is burglary for which he was put on probation. Over the past three decades he has amassed 51 prior convictions- 27 of which are to do with dishonesty 7 of them are burglary. His last convictions in July 2017 are theft and burglary for which he was given a total prison term of 27 months.

20.In mitigation, the court heard that the defendant got married in 2012 but divorced in 2020; they have no children. He used to work as a transportation worker on a casual basis and was out of job prior to his arrest. He lives alone and has been receiving CSSA since 2016.

21.Counsel for the defendant, Miss Cheung, submitted that although the defendant committed 5 burglaries within a short period of time, he was not a professional burglar. There is no evidence that he used heavy instruments to force his entry; he was committing the crimes alone on each occasion; the properties stolen were not of very high value.

22.Miss Cheung went on to say that there are no aggravating features which warrant an enhancement of the starting point of 30 months on each of the 5 counts of burglary. Having taken the court through a number of authorities on the question of totality, she submitted that an overall sentence of 4 years would be just about right to reflect the combined criminality of 5 burglaries.

23.Insofar as the stealing from the taxi was concerned, Miss Cheung took the view that 2 months’ imprisonment was sufficient to reflect the seriousness of the case.

24.Miss Cheung also relied on the fact that the defendant was suffering from mental illness as a mitigating factor, citing the authority Chiu Peng Richard CACC 287/2001 in support, by saying that:

“the defendant knew it was wrong, but did not appreciate that the commission was as serious as it was. His mental illness played a part in the commission of the burglary.”

Miss Cheung urged upon the court to take that into consideration by giving a further reduction of 6 months in sentence.

25.First of all, the court in Chiu’s case was dealing with a defendant of clean record, whereas in the instant case the defendant is undoubtedly a repeat offender of dishonesty offences, probably one of the worst kind.

26.Secondly, he has committed similar offences many times in the past, I am sure the defendant knew very well about the consequences or its seriousness of doing it again.    

27.Coming to his stealing from the taxi, this is certainly not a case of theft by finding, but rather I would liken it to a case of pickpocketing. Pickpocket involves the stealing of valuables from the person without them noticing the theft at the time.

28.Here the defendant taking advantage of the victim falling asleep surreptitiously took away his bag full of valuables without him noticing it. Apart from the loss of important identification documents, cash of $20,000 would be quite a handsome amount to a taxi driver which was also lost. 

29.When Miss Cheung said there was no aggravating feature in the instant case, she probably had forgotten about the fact that the defendant was a repeat offender of the offences to which he pleaded guilty. When asked to comment on this, Miss Cheung reiterated that his repeated offending to a larger extent had to do with the defendant’s mental condition.

30.In an authority, Wong Ho Kit Lawrence CACC 479/2000, submitted by the prosecution where a burglar of domestic premises, who has 47 prior convictions, 26 of them are burglaries, 10 for theft, two attempted theft and one handling, appealed against a sentence of 32 months’ imprisonment for one count of burglary. The Appellate Court approved of the adoption of a starting point of 4 years by the sentencing court (that would mean one year upward adjustment) and had this to say:

“With such a background as shown by the applicant’s previous criminal record, it is difficult to see how the learned district judge could be faulted for the sentence or the starting point adopted by him in sentencing this applicant. Indeed had he adopted any lesser sentence, it would be failing in his duty to protect the public from such an offender as the applicant……”

31.In the instant case, however, I would not go that far not least because the record of the defendant here is not as bad as that of the appellant in Wong’s case. Having said that, clearly the sentences passed on him in the past had failed to deter him from committing further offences in the future, an enhancement of the sentence of sufficient length is therefore called for.

32.As a matter of fact, there is another aggravating feature in the instant case in that the defendant had committed three more burglaries (Charges 4,5 and 8) while on police bail in between his first (21 September 2019) and second (29 October 2019) arrests.

33.For the offence of burglary, I take 30 months as the starting point for each of the offence, and add 6 months to take into account his record; as for the theft, I do the same except that the starting point is 15 months instead of 30 months.

34.As far as mitigation is concerned, besides his guilty pleas, there isn’t anything of substance. The defendant is entitled to a full one-third discount for his timely pleas.

35.After giving the appropriate discount, the sentence for each of the burglary and for theft is one of 24 months and 14 months respectively.

36.Taking into account the totality principle, I order that charge 1 be served consecutively to 2 months of charge 2, 3 months of charge 3, 4 months of charge 4, 5 months of charge 5, 6 months of charge 8 and the rest concurrently. The total term is one of 44 months’ imprisonment.