HKSAR v. Ho Kar Kei

DCCC 274/2021

[2021] HKDC 1557

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 274 OF 2021

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.Mr Ho faces a Charge Sheet comprising 17 charges of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210; and one charge of Attempted Burglary (Charge 18), contrary to section 11(1)(a)  and (4)  of the Theft Ordinance, Cap 210, and section 159G of the Crimes Ordinance, Cap 200.

2.Particulars of all the burglary charges (Charges 1 to 17)  are that Mr Ho, on all and different days between 4 and 21 December 2020 (both days inclusive)  except 9 December 2020, in Hong Kong, having entered as a trespasser part of a building known as Ground Floor, No 180 Hing Fong Road, Kwai Chung, New Territories, stole therein unknown amount of money (save and except Charge 17 – offence date 21 December 2020 – where the amount stolen was cash of $5,000 Hong Kong currency).

3.Particulars of Charge 18 are that Mr Ho, on 22 December 2020, in Hong Kong, attempted to enter as a trespasser part of a building known as Ground Floor, No 180 Hing Fong Road, Kwai Chung, New Territories, with intent to steal therein.

4.Mr Ho pleaded guilty to Charges 1 to 12, and 17 to 18; and he pleaded not guilty to the rest.  Prosecution asked that those other charges be left on court file not to be proceeded with without leave of this court or the Court of Appeal.  I so ordered.

Facts admitted by Mr Ho

5.Chan Hing Wong Foods Fruits and Vegetable Store is a vegetable store situated at G/F, 180 Hing Fong Road, Kwai Chung, with operation hours between 0730 and 1930 hours.  The main entrance was secured with three consecutive roller shutters with locks, but the lock of the middle roller shutter had malfunctioned since August 2020.

6.On 21 December 2020 at about 1930 hours, the Store owner PW1 confirmed cash of $5,000 was properly stored in the cashier and the premises were secured before leaving the Store.

7.Next day at about 0700 hours, when PW1 returned to the Store, he discovered the said cash was missing.  CCTV footage showed Mr Ho, a former employee, enter the Store via the middle roller shutter and steal cash from the cashier before exiting.

8.On 22 December 2020 at about 1930 hours, PW1 laid ambush near the Store.  At about 2200 hours, Mr Ho appeared and approached the Store.  When Mr Ho knelt down and was pulling up the roller shutter, PW1 intervened.  Case was reported.

9.Police arrived and arrested Mr Ho for “attempted burglary”.  Under caution, Mr Ho admitted he intended to enter and steal.  Mr Ho was further arrested for “burglary”.  He then admitted burgling the same premises and stole a few thousand dollars the previous night but he could not recall the exact amount.

10.Further CCTV footage showed Mr Ho had trespassed into the Store in the evenings of 4-8, 10-16 December 2020.

11.During cautioned VRI, Mr Ho admitted:-

(a)  He started working in the Store in mid-March 2020, and quitted in late August 2020; he knew the middle roller shutter lock was malfunctioned;

(b)  He committed all the offences with the same modus operandi by rolling up the middle roller shutter and entering the Store; he stole about $500-$600 each time and had spent all on rent and daily expenses;

(c)  He would close the roller shutter before leaving the Store after each burglary; and

(d)  He wore the clothing seized at his residence when committing the offences.

Criminal record

12.Mr Ho has a clear record.

Antecedents

13.Mr Ho is aged 41 (40 at the time of the offences), born in Hong Kong but migrated to and was educated to university level in Singapore.  He had previously worked as a salesperson in Singapore.  In 2010, upon returning to Hong Kong, he had worked as security guard, logistics worker and street market worker.  Mr Ho is single, resided in a hotel room and had no fixed place of abode.

Mitigation

14.Mr Jeffrey Lai of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Ho.  The following is a summary of the mitigation submissions.

15.Mr Ho obtained a degree in Business and Administration after having emigrated to Singapore with his parents and siblings.  He then started a successful trading business with a friend.  However, his friend diverted company funds to pay off losses in the stock market and absconded.  Mr Ho sold off his own assets in an attempt to rescue the company.  He failed.  His girlfriend left him.  His family members were unsupportive.  Mr Ho returned to Hong Kong with a severe depression.

16.He worked in several industries with modest income and did not stay long for each job.  He spent much time on his own which did not help his depression problem.  His depression might have contributed to his commission of the offences.  Mr Ho was put under the supervision of a clinical psychologist for 6 months when he was remanded in Lai Chi Kok and has last seen a psychologist in Stanley Prison in July 2021.

17.Mr Ho committed the present offences due to the economic stress.

18.Mr Lai accepted the normal starting point of 2 ½ years for a single charge of non-domestic premises burglary in the absence of aggravating or mitigating factors.  Mr Lai also accepted the offence may contain breach of trust element.  However, he emphasized that Mr Ho acted alone without tools and all offences were committed at the same premises.

19.Mr Ho wrote a mitigation letter himself (submitted with English translation); in it he expressed remorse for what he had done and admitted to being silly enough to commit the offences in order to make ends meet.

20.Mr Lai asked the court to take note of Mr Ho’s clear record, his timely plea and reminded the court to apply the totality principle.

Sentence

21.I bear in mind the relatively small amount of the known loss ($5,000 in relation to Charge 17).  I bear also in mind the offences were committed within a period of 19 days.

22.Mr Ho made use of the knowledge gained while in employment at the victim Store ie that there was a faulty roller shutter permitting entry after close of business.  This is clearly a breach of trust element aggravating the circumstances of the offences.

23.Depression is no excuse for committing the offences nor is economic stress.  Other right-thinking citizens of Hong Kong suffering from economic stress and/or depression do not turn to crime but either seek help or find other ways to alleviate those personal problems.

24.I adopt a starting point of 2 years 9 months to reflect the gravity added to each offence by the presence of breach of trust.  The fact of multiple offences of the same kind is an aggravating factor in itself but I do not intend to enhance the starting point further.  Rather, I will allow the global starting point to take that into account bearing fully in mind the principle of totality.

25.For all the 14 charges that Mr Ho is convicted of, I adopt a global starting point of 54 months.  For his timely plea of guilty, Mr Ho is entitled to a 1/3 discount.  For his previous clear record, I shall knock off one month after the 1/3 reduction.  There is no other valid mitigating factor.

26.I shall impose the following individual sentences.

(Mr Ho, please stand)

27.For each of Charges 1 to 12, Charges 17 and 18, the sentence is 22 months’ imprisonment.  I order that one month of the sentence on all those charges except Charge 1 each to run consecutively among themselves and then to the sentence on Charge 1, making an aggregate sentence of 35 months’ imprisonment.