HKSAR v. Lee Justin also known as Lee Sum Ho

DCCC 137/2018

[2022] HKDC 91

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 137 OF 2018

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REASONS FOR SENTENCE

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1.Mr Lee pleaded guilty before me to 3 charges of Burglary[1] (Charges 1, 3 and 4)  and one charge of Failing to surrender to custody without reasonable cause[2] (Charge 5).

2.He pleaded not guilty before me to another charge of Burglary (Charge 2).  Prosecution asked that it be kept on court file not to be proceeded with without the leave of this court or the Court of Appeal.  I so ordered.

3.Particulars of Charge 1 are that he, on 22 May 2017, in Hong Kong, having entered as a trespasser part of a building known as “AT LUX”, Ground Floor, Nos 19-23 Hart Avenue, Tsim Sha Tsui, Kowloon, stole therein 5 bottles of wines.

4.Particulars of Charge 3 are that he, on 6 July 2017, in Hong Kong, having entered as a trespasser part of a building known as “Penthouse”, 3^rd Floor, One Knutsford, No 1 Knutsford Terrace, Tsim Sha Tsui, Kowloon, stole therein 3 bottles of wines.

5.Particulars of Charge 4 are that he, on 6 July 2017, in Hong Kong, having entered as a trespasser part of a building known as “TUTTO BENE”, Ground Floor, No 7 Knutsford Terrace, Tsim Sha Tsui, Kowloon, stole therein one smartphone.

6.Particulars of Charge 5 are that he, on 6 May 2019, in Hong Kong, being a person admitted to bail, without reasonable cause, failed to surrender to custody as had been appointed by a court.

Facts admitted by Mr Lee

Charge 1

7.“AT LUX” was a bar situated on Hart Avenue, TST.  It had just completed renovations and was due to open for business on 22 May 2017 at 5:30 pm.  At about 8 pm on that day, it was discovered that 3 bottles of cognac and 2 bottles of whisky (valued at $6,766 in total)  had gone missing from the shelf.

8.What happened was Mr Lee entered the bar shortly before 2 pm that day without authorization.  The door was not locked at that time.  After wandering around for a while, he walked into the area behind the bar table and took away the 5 bottles of alcohol from the shelf.

Charge 3

9.“Penthouse” was a bar situated in Knutsford Terrace, TST.  It opened from 4 pm to 3 am daily.

10.What happened was shortly before 11 am on 6 July 2017, Mr Lee entered the bar and took away 3 bottles of MaCallan Whisky valued at $6,040 from the wine cabinet outside the bar near the lift lobby.

Charge 4

11.“TUTTO BENE” was a restaurant situated in Knutsford Terrace, TST.  It opened from noon to midnight on Sundays to Thursdays and from noon to 1 am on Fridays and Saturdays.

12.Shortly before 11 am on the same day ie 6 July 2017, a waiter returned to the restaurant for work.  He left his mobile phone (valued at about $6,000)  on the bar table.  About an hour later, he discovered it missing.  He reported the loss to the police.

Arrest and caution

13.At around 11:40 am on the same day ie 6 July 2017, a patrolling police constable spotted Mr Lee peeping into stores at Knutsford Terrace and Observatory Road, TST.  When Mr Lee attempted to board a taxi, he was intercepted by the police.  From a bag being carried by him, the 3 bottles of wine stolen from “Penthouse” were recovered.

14.Under caution, Mr Lee admitted to stealing the 3 bottles earlier that day.  He was arrested for burglary and admitted he stole the 3 bottles out of momentary greed.

15.The mobile phone stolen in “TUTTO BENE” was recovered from Mr Lee’s left front trouser pocket.  He was again arrested for burglary.  Under caution, he admitted he stole the mobile phone from a dining table inside the restaurant earlier that day.

16.On both of the offence dates, he arrived in Hong Kong in the morning. He left Hong Kong on the night of the offence date of Charge 1.

Charge 5

17.The case involving the 4 burglaries was set down for trial on 6 May 2019 with Mr Lee on court bail till then.  He failed to turn up for trial.  A warrant of arrest was issued.

18.On 15 June 2021, patrolling police officers spotted Mr Lee acting furtively in the small hours in Causeway Bay.  Mr Lee then fled but was intercepted after a short chase.  He told the officers he was wanted.  He was then re-arrested. Under caution, he admitted that he did not attend court as he was afraid of going to jail.

19.Mr Lee now admits he jumped court bail without reasonable cause.

Criminal record

20.Mr Lee has 5 previous convictions (one of them for theft when he was 17)  all resulting in fines with the last one being recorded in the year 2000.

Antecedents

21.Mr Lee is aged 47 (42-44 at the time of the offences), educated to F5 level, was a clerk with monthly income of $10,000.  He is single and has a younger sister.

Mitigation

22.Ms Fiona Nam of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Lee.

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

24.Mr Lee’s family consisted of his mother and step-sister, about 11 years younger than him.  Both are in court to give their support.

25.From 2016 to the time of his arrest in 2017, he worked as a part-time clerk in the Mainland earning about $10,000 per month.  Although he lived in the Mainland, he returned to Hong Kong frequently to take care of his aged grandmother.

26.Mr Lee’s previous convictions were, in the main, for manufacturing/selling liquor without licence.

27.The sentencing guideline for non-domestic premises burglary is 2 ½ years’ imprisonment.

28.The stolen properties of Charges 3 and 4 were recovered.  The only actual loss was the 5 bottles of wine of Charge 1, valued at $6,766.  The bar subject of Charge 3 was also under renovations according to the witness statement of Ms Ha, the victim.

29.The mode of operation was relatively unsophisticated involving only Mr Lee and the degree of planning was low.

30.Mr Lee did not break in or prize open any door.

31.Charges 3 and 4 were committed on the same day with close proximity in time.  Ms Nam urged the court to consider the totality principle and impose concurrent sentences.

32.Mr Lee committed the offences because of financial hardship and will not re-offend.  Ms Nam asked for leniency on behalf of Mr Lee.

33.Regarding late pleas and Charge 5 (Failing to surrender), it was submitted that 6 days prior to the original trial date ie 6 May 2019, a plea bargain agreement had been reached with the prosecution; that on 3 May 2019, defence informed the court about this plea bargain result.  However, on the first day of the original scheduled trial period, Mr Lee failed to appear.

34.Mr Lee understands that his present pleas are not timely ones, and that he has absconded for 2 years, he will not receive the full 1/3 discount.  In this respect, Ms Nam referred to the following cases:-

(a)  HKSAR v Wai Ping Sum, HCCC 166 & 167/2018;

(b)  HKSAR v Galvis Silva Paola Andrea, CACC 133/2018; and

(c)  HKSAR v Lo Kam Fai [2016] 2 HKLRD 308.

35.Ms Nam submitted that Mr Lee is genuinely remorseful and urged the court to pass a lenient sentence having regard to totality.

36.Ms Nam submitted two mitigation letters written in English by Mr Lee’s step-younger-sister and his mother respectively.  The contents are generally that Mr Lee is a helpful person, a caring brother and a filial son; that Mr Lee is deeply remorseful and shameful.  Both writers asked for a lenient sentence so that Mr Lee may reunite with his family and start a new life early.

Sentence

37.It is not difficult to see that Mr Lee was engaged in a mission to commit a chain of burglaries on 6 July 2017 – apart from the two burglaries committed that day, he was looking for further opportunities to commit a similar offence.

38.It is acknowledged that he had not broken any doors or locks in order to gain entry but it is still a far cry from describing the burglaries as opportunistic ones.  I note the burglary subject of Charge 1 was committed a few hours after he arrived in Hong Kong from the Mainland; and then Mr Lee returned to the Mainland at night of the same day.

39.All things considered, I decide that for Charge 1, I will adopt a starting point of 2 years 3 months.  However, for Charges 3 and 4, I will each adopt a starting point of 2 years 6 months.  All three are completely separate offences and, subject only to totality, their sentences ought to be served consecutively to one another.

40.As for the matter of late pleas, I note from the court records that as long ago as 2 November 2018, a trial date had already been fixed thereon. However, because Ms Nam had then only been lately instructed, the trial was adjourned to the following Monday ie 5 November.  On the return day, Ms Nam submitted that she was still not able to take full instructions and also that Mr Lee wished to call some defence witnesses who were still at large; she therefore applied to refix the whole trial.  That was when the trial was refixed to 6 May 2019.

41.This shows that Mr Lee has not wasted only one court hearing but two hearings with one of them for a full trial.

42.Regarding Charges 1, 3 and 4, taking into account the long period Mr Lee was at large, the court time wasted, the inconvenience caused to the civilian witnesses at least in relation to the trial hearing in November 2018, the wasted efforts of the prosecution and the police in preparing for both trial hearings up to 30 April 2019 ie 6 days before the scheduled 2^nd trial hearing, the extra manpower required to re-arrest Mr Lee, to add a Charge 5 to the original Charge Sheet and to re-negotiate a plea bargain with Mr Lee, I opine that Mr Lee is now entitled to only 1/5 discount from the starting point.

43.For Charge 5, I will adopt a starting point of 6 months and I will give Mr Lee the customary 1/3 discount.  Subject only to totality, this sentence ought to be served consecutively to the other sentences.

44.Because of the age of his previous criminal convictions, I will treat Mr Lee as a person of previous good character as at the time when he committed the first burglary.  For this reason, I will knock off one month and 18 days from his sentence on Charge 1 after the 1/5 discount.

45.There are no other mitigating factors of weight to justify any further reductions in sentence.

46.I will consider the totality principle in reaching the final sentence.

(Mr Lee, please stand)

47.For Charge 1, he will go to prison for 20 months.

48.For Charge 3, he will go to prison for 24 months.

49.For Charge 4, he will go to prison for 24 months.

50.For Charge 5, he will go to prison for 4 months.

51.I order that 3 months of each of the sentences on Charges 1, 3 and 5 to run consecutively among themselves; and the result is to run consecutively to the sentence on Charge 4, making an aggregate sentence of 33 months’ imprisonment.