HKSAR v. Lo Ping Keung

DCCC 697/2020

[2021] HKDC 265

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 697 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to three charges of burglary, contrary to section 11 of the Theft Ordinance (charges 1, 2 & 4)[1].

2.Full particulars of the offences are set out in the amended summary of facts admitted by the defendant today.  In summary in March 2020 the defendant burgled offices in Cheung Fung Commercial Building, Nos. 21-25 Cheung Sha Wan Road in Sham Shui Po.  The defendant was arrested on 18 March 2020 when he admitted committing the three burglaries because he had no money.

3.Access to the offices was by climbing up scaffolding on a neighbouring building and then walking along a platform on the 4th floor of Cheung Fung Commercial Building. Photographs showing the scaffolding, the platform and the burgled premises have been submitted to court. 

Charge 1

4.On 13 March 2020 the office of Ming Cellar Asia Limited situated on the 4th floor of Cheung Fung Commercial Building was burgled.  The office was ransacked and prize marks were found on a window and a cabinet.   Two bottles of whisky worth $8,000 and a box containing $2,000 cash were stolen. 

5.The defendant admitted that at around 6 a.m. he climbed up the scaffolding of the neighbouring building to the platform on the 4th floor.  The defendant then climbed into the office through a window.  The defendant admitted stealing some cash and bottles of alcohol which he sold for around $1,100.

Charge 2

6.On 15 March 2020 the tutorial centre run by Mr Yu in Room 602 on the 6th floor of Cheung Fung Commercial Building was burgled.  Two laptops worth around a total of $25,000 and one iPad worth around $8,000 were stolen.

7.The defendant admitted that at around 5 a.m. to 6 a.m. he climbed up the scaffolding of the neighbouring building to the platform on the 4th floor.  The defendant then climbed up to the 6th floor and entered Room 602 through a window. 

Charge 4

8.On 15 March 2020 the office of Ming Cellar Asia Limited was again burgled.  A window was smashed and the office ransacked.   Around twenty-seven bottles of alcohol worth around $22,500; $5,000 cash; one cheque book; one laptop worth around $7,800; one camera worth around $4,000 and one bag worth around $2,800 were stolen. 

9.The defendant admitted that after burgling the room on the 6th floor he climbed back down to the 4th floor platform and climbed into the office through a window.  The defendant admitted stealing the alcohol which he sold for around $400-$500.

Mitigation

10.In passing sentence, I have carefully considered the oral and written submissions of Mr So, including that the defendant is 52, divorced and has a girlfriend and a son aged 10 who he has to support[2]. 

Starting point

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

12.Although the defendant has many previous convictions, taking into account his last conviction for an offence of dishonesty was in 2013 and his last appearance in court was in 2016 over four years prior to the present burglaries, I do not enhance the sentence by reason of previous offending. 

13.I am satisfied the correct starting point on each charge is 2 years and 6 months’ imprisonment. Giving the defendant full credit for his pleas of guilty reduces the sentence on each charge to 1 year and 8 months’ imprisonment.

Totality

14.Mr Wong informs the court that after the second burglary of Ming Cellar Asia Limited on 15 March 2020 (charge 4) CCTV was installed in the office.   CCTV captured the burglar inside the office on the 17 March 2020 (charge 5)[3].  The police viewed the CCTV footage. 

15.On 18 March 2020 the police saw the defendant in the street and recognised him as the person seen in the CCTV footage[4]. The defendant was arrested and confessed to the burglaries.  Mr Wong confirms that the only evidence against the defendant is his confession, there being no CCTV footage or other forensic evidence for charges 1, 2 and 4.   

16.In HKSAR v Ma Ming the Court of Appeal held the fact that a frank confession provides the only evidence which supports the charge did not entitle the defendant to a further discount over and above the one-third discount[5]. 

17.The Court of Appeal in HKSAR v Ngo Van Nam reaffirmed the position that a judge was not obliged to give a discount over and above the one-third discount explaining that the mitigating factor of a confession was subsumed within the one-third discount[6].

18.The court in Ma Ming did however say that when considering the totality of the sentence a court, in exercising its discretion, can take into account the fact that the frank confession of a defendant provides the only evidence to support the charge. 

19.Taking into account all the circumstances of the three burglaries; two burglaries were committed on the same night; the same premises were burgled twice; the total value of the stolen property in each burglary was $10,000, $33,000 and $42,100 respectively (total $85,100); no restitution has been made and that the only evidence against the defendant on each charge is his confession, I am satisfied that a total sentence of 2 years and 8 months’ 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[7].  

Sentence

20.The defendant is convicted and sentenced as follows:

Charge 1 – 1 year and 8 months’ imprisonment.

Charge 2 – 1 year and 8 months’ imprisonment with 6 months consecutive and 14 months concurrent to charge 1; and

Charge 4 – 1 year and 8 months’ imprisonment with 6 months consecutive and 14 months concurrent to charges 1 & 2.

21.The total sentence to be served by the defendant is 2 years and 8 months’ imprisonment.