HKSAR v. Li Ka Shing and Another

DCCC 1027/2020

[2021] HKDC 1057

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1027 OF 2020

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REASONS FOR SENTENCE

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1.D1 and D2 pleaded guilty to their respective charges.

Charge 1 Burglary – against both Defendants

Charge 2 Using an identity card relating to another person – against D1 only

Charge 3 Theft of an identity card – against D1 only

Charge 4 Failing to surrender to custody without reasonable cause – against D2 only

Charge 5 Loitering – against D2 only

Summary of Facts

Charge 1, 2 and 3

2.At around 8 am on 17 April 2020, PW1 returned to the clinic and found the door of the clinic had been prised open.  There was a crowbar inside the clinic.  PW1 found the following items were missing:-

(a)  A Sony camera (valued at HK$7,000);

(b)  HK$5,000 cash;

(c)  A coin purse (valued at HK$4,000);

(d)  Seven credit cards;

(e)  PW1’s cheque books.

3.CCTV of the clinic showed that D1 and D2 ransacked the clinic from 5:10 to 5:12 am on the same day.

4.Both defendants were intercepted in Mongkok on the following date.  During enquiry, D1 produced Lai Sze Shing’s identity card.  Upon further enquiry, D1 admitted that his actual name was Li Ka Shing.  D1 admitted under caution that he kept Lai’s idenitity card after he picked it up in Mongkok.

5.Both D1 and D2 were subsequently arrested for charge 1.  They both admitted under caution that they burgled PW1’s clinic, stolen items were sold and stolen money was spent.

6.D1 further admitted that he prised open the door of the clinic with D2 by using the crowbar.

Charge 4

7.D2 was granted bail on 1 June at the West Kowloon Magistracy.  He failed to turn up on the mention date on 14 July 2020.

8.D2 was re-arrested.  He said under caution that he forgot to attend the court on 14 July 2020.

Charge 5

9.PW8 was the security guard of the same building where the clinic of charge 1 was located. 

10.At around 7:20 pm on 28 July 2020 from the screen of the CCTV in the security room, PW8 saw D2 take a lift to the 8/F alone.  Subsequently, D2 took a lift from the 12/F to the 11/F.

11.PW8 found D2 suspicious as there was no shop opened from the 3/F to the 8/F and she worried D2 might commit theft in the building.

12.PW8 came across PW9 who was the tenant of a Café situated on the 2/F. PW8 informed PW9 about D2.

13.PW9 walked up to the 2/F and saw D2 push open the door of his Café which was under renovation.

14.PW9 confronted D2 and questioned him as to why he was there.  D2 replied that he wanted to eat in there.  PW9 told him the Café was not opened.  D2 said that he might have gone to the wrong floor.  D2 further changed to say that he was there to see a doctor when PW9 told him that the Government disallowed dine in service at the material time.

15.At the end, they got into an argument, D2 suddenly pushed PW9 and ran away.  

16.D2 entered a lift.  PW9 stopped the door of the lift to prevent it from being closed.  D2 asked PW9 to let him go as he was poor.

17.PW6 came to investigate the matter.  D2 told PW6 that he went to the 8/F to find someone, but to no avail.  He also went to the 11/F to drink coffee.  He wandered around the building as he was bored.

18.D2 was arrested for the offence of loitering.  Under caution, he said that he wanted to borrow money from his friend in a game centre on the 8^th floor of the building, but to no avail.  He later took the lift to 11/F to wander around aimlessly.

Criminal record

19.D1 – between 2017 to February 2020, D1 had four previous convictions, three related to gambling in a gambling establishment, one related to theft in 2018.

20.D2 – he had one previous record for gambling in a gambling establishment. He was ordered to pay a fine of $800 in July, 2020. 

21.For the purpose of the present case, D2 has a clear record.

Mitigation

22.Both defendants committed the present offences out of financial hardship.  They became unemployed since the outbreak of the pandemic.

Background of D1:-

23.D1 is aged 29.  Divorced.  He has custody of the elder son while his wife takes care of the younger son.  D1 lives with his mother.  

24.He is now extremely remorseful as he cannot take care of his family.  He vowed that he will not commit any further offences in the future so that he can take up his responsibility to look after his family.

As to D2’s background:-

25.D2 is aged 29.  Married.

26.He needs to support his wife’s living expenses in China.

27.He also needs to take care of his parents’ medical expenses as his father is a cancer patient and his mother is suffering from high blood pressure.

28.As to charge 4, his bail money which was borrowed money, had been estrested by the court due to his absence to attend court on 14 July 2020.  His explanation was that he had never committed any serious offence before and he was at a lost, therefore he forgot to attend court.

29.Mr Chow for D2 referred this court to a magistracy appeal HKSAR v AU Pak Chung HCMA 586/2009 which was a loitering case consisting of a different kind of facts.  It was a case that the appellant bent down and looked up to one of the girls’ skirt.  On appeal, a 6 months sentence was overturned and substituted with 2 months imprisonment.

Prosecution submission

30.Before I commence and state the reasons for sentence, I must say that it is rather unusual for the Prosecution to submit a number of cases in respect of all the charges just 15 minutes before the hearing started.

31.All the cases referred by the Prosecution have no relevance to the present cases.  For burglary and using ID card related to another person charges, there are already leading authorities to follow.

32.For Charges 3 and 5, the Prosecution referred me some magistrates appeals. I can only say that none of them are of any relevance to the present case.

Reasons for sentence

33.It is well settled that burglary offence in respect to a non- domestic premises attracts a sentence of 30 months’ imprisonment.

34.According to the case of HKSAR v Cheng Wai Kai CACC 338/2007 that the starting point can adjust upward if there are aggravating circumstances.  In the present case, the offence is carefully planned and skillfully executed as it involved the usage of a crowbar to prise open the door of the clinic.  It is premeditated and well-planned.  The offence is committed by two defendants.

35.Financial hardship was not a mitigating factor to commit any offence.

36.The victim lost a camera (HK$7,000), a coin purse (HK$4,000)  and $5,000 cash.  The stolen items have been sold.  The 7 credit cards were not recovered. There is a great potential lost for the 7 credit cards if they were not stopped in time.

37.I therefore adopted a starting point of 30 months for charge 1, I adjusted upward for another 3 months.  It becomes 33 months, reduced to 22 months after 1/3 discount.

Charge 2 and 3 (D1 only)

38.As to charge 2, D1 admitted picked it up in Mongkok and kept it afterwards.  As said in the judgement of HKSAR v Li Chang Li HCMA 935/2004 that identity cards are not collectable items.  D1 kept it for future use.  It could actually cover his truth identity. D1 used the stolen identity card on this occasion bearing in mind he had committed the offence of burglary on the previous day.  His intention was clearly to avoid the arrest.  He could have told the police that he lost the ID card if this was his situation.

39.Against this background, I considered that 15 months is appropriated and reduced to 10 months after 1/3 discount.

40.I adopted a starting point of 6 months for the 3^rd charge of the stolen Identity card and reduced to 4 months after 1/3 discount.  Both charges of charges 2 and 3 to run concurrently.  A total of 10 months for both charges 2 and 3.

41.Applying the principle of totality, 4 months from the 10 months to be run consecutively to Charge 1.  It arrives at a total of 26 months against D1.

Charge 4 and 5 (D2 only)

42.As to D2 ‘s remaining charges, namely charge 4 and 5.

43.As to charge 4, D2 explained that he forgot the mentioned date.  I considered that it was not a valid reason.  I adopted a starting point of 6 months and reduced to 4 months.

44.As to charge 5, D2 went back to the same building where the burglary charge took place in April.  When D2 was confronted by PW9 as to his reason to be there, he changed his versions from eating in a renovated café to going to a wrong floor, then intending to visit a doctor.  However, there was no shop opened from the 3/F, to the 8/F at the material time.  D2’s replied to PW9 was evasive and his presence in that building was suspicious.

45.He moved from one floor to another floor.  His behaviors had caused both PW8 and PW9 concerned that he might committed crimes in that building.

46.D2 was arrested on 18 April 2020 for charge 1 and was brought to Court and granted bail on 1 June 2020.  In other words, he committed charge 5 while he was on bail.  This is an aggravating factor.

47.This is a serious case of loitering.  Maximum sentence for loitering is 2 years.  I adopted a starting point of 9 months, reduced to 6 months after 1/3 discount.

48.I ordered charge 4 and 5 against D2 to be run consecutively, that means a total of 10 months for both charges, I further order 4 months out of the 10 months to run consecutively to charge 1.  Total sentence for D2 is 26 months.

49.Both D1 and D2 are to serve a total sentence of 26 months.