HKSAR v. Lam Kwong Lung

DCCC 660/2020

[2021] HKDC 678

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 660 OF 2020

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.Mr Lam (D1) pleaded guilty before me to Charge 1 of Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210; and Charge 2 of Resisting police officers in the due execution of their duties, contrary to section 36(b) of the Offences against the Person Ordinance, Cap 212.

2.The particulars of Charge 1 are that D1, on 24 February 2020, in Hong Kong, together with Fung Chi Shing, having entered as trespassers part of a building known as LOVE LANE, Shop No H216, 2^nd Floor, Zone H, H.A.N.D.S, No 2A Tuen Mun Heung Sze Wui Road, Tuen Mun, New Territories, attempted to steal therein.

3.The particulars of Charge 2 are that D1, on the same day, at the same place, resisted Police Constable 17165, Police Constable 24951 and Sergeant 6558, police officers of the Hong Kong Police Force, in the due execution of their duties.

Facts admitted by D1

4.The subject shop was a claw machine shop located on the 2^nd floor of shopping mall.  The shop opened 24 hours with no staff stationed there.  It had two token machines which sold tokens to customers for operating the claw machines.

5.On 24 February 2020, at about 3 am, D1 and another male Fung Chi Shing (“Fung”) entered the mall through the 2^nd floor entrance with their facial masks on.  Fung then went out again and wandered near the entrance, acting as a lookout.  D1 wearing a pair of gloves went in and out of the mall through the entrance talking to Fung for a short while each time.  D1 and Fung each wore a hooded jacket and pulled up the hood at all times.

6.D1 then entered the shop and started prizing a token machine with a pair of pliers.  Three plainclothes police officers (particulars in the charge) who had been keeping observation nearby took action and entered the shop.  They revealed their identities and warned D1 not to move and to put down the pliers.  D1 did not listen but instead pointed and waved the pair of pliers towards the officers and tried to dash through them for exit.  One of the officers PW2, with a baton in his hand, repeated the warning.  D1 again did not comply but continued to point and wave the pliers towards PW2 who was less than one metre away.  PW3 the Sergeant drew out his pistol and warned D1 that if he did not stop he would be shot at.  D1 ignored the warning and dashed through the officers and managed to escape.  The officers gave chase to D1 who fled through the entrance.

7.During the pursuit, PW2 noticed the presence of Fung.  PW2 then chased after Fung who was eventually subdued.  PW2 found from a bag carried by Fung two receipts from two shops for a pair of pliers and a screwdriver both dated 21 February 2020.

8.The two other officers including PW3 continued to chase after D1 and saw him discard the pliers and a screwdriver along the way.  They tried to subdue D1 who continued to resist vigorously by using his hands to ward off the hands of the two officers.  After repeated police warnings that a baton will be used to effect arrest had been ignored by D1, PW3 applied his baton on D1 before the latter was successfully handcuffed.

9.Under caution, D1 stated that:-

(a)  On the day of the offence, Fung called him and asked him to meet at a Light Rail Train Station;

(b)  Fung gave him a recycle bag containing a screwdriver, a pair of pliers and a pair of gloves;

(c)  Fung asked him to prize the token machine at the shop, so he did while Fung acted as a lookout outside the shop; and

(d)  Police emerged and he tried to flee and dash out of the shop but was eventually subdued near the Light Railway Train station.

10.D1 now admits he acted in a joint enterprise with Fung in the burglary and he resisted the three police officers in due execution of their duties.

Criminal record

11.D1 has 11 previous convictions 3 of which (from 1993 to 1996) were for theft or going equipped for stealing.

Antecedents

12.D1 is aged 44 (43 at the time of the offences), educated to F1 level, and was a transportation worker at the time of arrest.  He is married and lived with his wife and daughter (20) in public housing in Tuen Mun.

Mitigation

13.Mr Victor Lee of counsel assigned by the Director of Legal Aid mitigated on behalf of D1.

14.The following is a summary of the mitigation submissions.

15.Before arrest, D1 worked as assistant to driver and received about $11,000 per month.

16.D1 confessed to the police under caution and pleaded guilty to the offences at the earliest opportunity indicating remorse.

17.Mr Lee referred to HKSAR v Cheng Wai Kai, CACC 338/2007, to say that the normal sentence for commercial burglary is 30 months after trial.  It was submitted that there was no break-in and only handy tools were used to prize open the lock of a token machine; that the attempt to find cash failed and there was no loss of cash.  It was also submitted that this case was similar to an opportunistic burglary (as in HKSAR v Law Tin Yam, CACC 258/2010) akin to the sneak thief who walked into an open office to steal; and therefore a lower starting point may be justified.

18.In relation to the charge of resisting police officers, D1 failed to put down the pliers and tried to escape.  It was submitted there was no bodily contact nor struggle with police officers inside the shop.  Mr Lee referred to two District Court sentencing cases which imposed 2 weeks’ imprisonment after plea where there was struggle and bodily contact.  Mr Lee asked the court to take into account totality and pass the lowest possible sentence.

19.D1 submitted a mitigation letter (in Chinese) written by himself. Contents are generally that he expressed regret to the shop in question; he asked for a chance to turn over a new leaf.

20.Upon enquiry by the court, Mr Lee submitted that there was no clear evidence who was the ringleader of the burglary.

Sentence

21.I have considered the mitigation submissions and I noted there was no loss of cash.

22.The usual starting point in a burglary of non-domestic premises is 2½ years’ imprisonment.  I take into account there was no break-in so I will reduce the starting point by 3 months.  However, in this case, there is the aggravating factor of two persons acting in concert.  For this reason, I will add back the 3 months to the starting point.  I agree that there is no clear evidence who was the ringleader in this joint enterprise.  I am however not satisfied that this was an opportunistic burglary for the reason that the duo clearly chose the execution time of the burglary; and they came prepared with pliers, screwdriver and gloves and had the hood of their hooded jackets pulled up at the relevant time.

23.For the resisting offence under section 36(b) of Cap 212, the maximum penalty is 2 years’ imprisonment.  I do not accept the submission that there was no bodily contact between D1 and the police officers.  According to the facts, D1 attempted to dash through and eventually did dash through the officers and made good the escape from the shop.  The encounter in the shop between the two sides even led PW3 to draw out his pistol.  These are aggravating features of Charge 2.  Taking all these into account, I will adopt a starting point of 6 weeks’ imprisonment for this charge.

24.D1 pleaded guilty in good time earning him the usual 1/3 discount. There are no other mitigating factors of sufficient weight that would justify any further reduction.

25.The two offences took place at the same time and same place; however, the resisting offence was not a necessary concomitant of the burglary offence and added to the danger faced by the law enforcement officers.  I consider an element of consecutiveness is warranted.  I will take into account the principle of totality when imposing the final sentence.

(D1, please stand)

26.For Charge 1, D1 is to serve 20 months’ imprisonment.

27.For Charge 2, D1 is to serve 4 weeks’ imprisonment.

28.I order that 3 weeks of the sentence on Charge 2 is to run consecutively to the sentence on Charge 1, making an aggregate sentence of 20 months and 3 weeks’ imprisonment.