HKSAR v. Mok Chi Wai

DCCC 659/2021

[2022] HKDC 204

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 659 OF 2021

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REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of burglary, contrary to section 11 of the Theft Ordinance[1]and one charge of theft of ten aluminium alloy bars, contrary to section 9 of the Theft Ordinance.

2.Full particulars of the offences are set out in the summary of facts dated 28 February 2022 admitted by the defendant today[2].

Burglary

3.At about 1:25 p.m. on 6 January 2021 Ms Lin, a security guard of Fu Wah Industrial Building in Yuen Long, saw from the CCTV the defendant pushing a trolley on which was placed some drain covers.  Ms Lin approached the defendant who said that he got the drain covers from the 3^rd floor.  CCTV also captured the defendant leaving the building pushing the trolley shortly thereafter.

4.Ms Lin notified Ms Lau the manager of Healthworks Group Holdings Limited which was situated at Rooms 305-309 of Fu Wah Industrial Building.  Ms Lau returned to Rooms 305-309 and found the front door open; the iron chain and door handle broken and thirty drain covers, valued at $12,000, missing. 

5.Photographs of the premises have been produced. The drain covers were taken from the floor.  Photographs 2-6 show the location of the missing drain covers. 

Theft

6.At about 3:20 p.m. on 21 April 2021 Ms Chung, a security guard of Po Wai Building in Yuen Long, saw the defendant in the lobby on the ground floor pushing a trolley on which was placed some iron bars.  Feeling suspicious Ms Chung approached the defendant for enquiry.  The defendant however left the building with ten bars leaving behind the trolley and three bars on the 1^st floor staircase.

7.CCTV captured the defendant pushing the trolley towards Po Wai Building at 2:36 p.m. the same day and later leaving the building without the trolley.

8.Mr Ching, the owner of Mondo Green Energy Limited which had premises on the rooftop of Po Wai Building, returned to the premises and found ten aluminium bars valued at $3,000, missing.

9.Photographs of the rooftop and access to the rooftop by the staircase have been produced. Photographs 16 and 17 show the trolley used by the defendant and the three aluminium bars the defendant left behind when he was approached by Ms Chung, the security guard.  Photographs 1 and 2 show aluminium bars on the rooftop. 

Arrest

10.The defendant was arrested on 7 May 2021.  Under caution and in a video-recorded interview the defendant admitted entering the premises on the 3^rd floor of Fu Wah Industrial Building and stealing the drain covers which he later sold for $200.  Under caution the defendant also admitted stealing the aluminium bars which he later disposed of. 

11.On a search of the defendant’s residence the police found the shoes worn by the defendant when committing the burglary and the clothes worn when stealing the aluminium bars.    

Mitigation

12.In passing sentence, I have carefully considered the oral and written submission of Mr Chan, including that the defendant who is 47, divorced and unemployed at the time of his arrest, acted alone and fully cooperated with the police[3]. 

13.Mr Chan informs the court that after the divorce the defendant and his wife reunited but have not yet remarried.  I have read the mitigation letter written by the defendant’s wife in which she describes the defendant as a good father of their two children and good husband and asks for a lenient sentence so the defendant can make a new start. 

Starting point

14.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.  I find no grounds to depart from the guideline. 

15.Mr Chan submits the theft is not the most serious kind and that a short period of imprisonment is appropriate[4]. In my view, the defendant having accessed the rooftop of private premises to steal, the theft at Po Wai Building is similar to that of burglary.  The defendant having equipped himself with a trolley to take away anything he could steal was clearly looking for items to steal which he may be able to sell for money.

16.I am satisfied the correct starting point for the theft of the aluminium bars is 1 year and 6 months’ imprisonment.

Persistent offending

17.Although the defendant has many previous convictions for offences of dishonesty, taking into account his last burglary was in 2012 and his only conviction thereafter was for theft in 2016 when he was sentenced to six weeks’ imprisonment, I do not enhance the starting points by reason of his persistent offending. 

18.Giving the defendant full credit for his pleas of guilty reduces the sentence on charge 1 to 1 year and 8 months’ imprisonment and on charge 2 to 12 months’ imprisonment.

Totality

19.Where offences are committed in different premises against different victims on different dates consecutive sentences should be imposed.  I am satisfied a total sentence of 2 years and 2 months’imprisonment properly reflects the defendant’s criminality on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[5].  

Sentence

20.The defendant is convicted and sentenced as follows:

Charge 1 – 1 year and 8 months’ imprisonment; and

Charge 2 – 12 months’ imprisonment

I order 6 months of the sentence on charge 2 to be served consecutive to the sentence on charge 1 and 6 months concurrent. The total sentence to be served by the defendant is 2 years and 2 months’ imprisonment.