HKSAR v. Lee Wang Kam (also known as Lee Chi Wang)

DCCC 300/2021

[2021] HKDC 1219

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 300 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to the following charges:-

Charge 1 - Using an identity card relating to another person

Charge 2 - Burglary

SUMMARY OF FACTS

Charge 1 - Using an identity card relating to another person

2.On 14 August 2020, the defendant rented a unit at 1401-4 by signing a tenancy agreement, the defendant presented to PW4:-

(i)  a Hong Kong Identity Card of Lam Hong Yu (PW5),

(ii)  a letter with Lam Hong Yu printed thereon as address proof.

Charge 2 - Burglary

3.At 9 am on 27 October 2020, the receptionist of the office found that the CCTV covering the common area of the office was covered by a piece of tissue paper.  The CCTV captured that:-

(1)  At 2.04 am on 27 October 2020, 3 masked males (including the defendant)  entered the office with keycard and walked to 1401-4’s direction.

(2)  At 2.08 am, the CCTV camera was blocked.

(3)  PW4 found that there were two entry records of Room 1401-1 at 2.02 am and 2.08 am and one entry record of Room 1404-4.

(4)  The partition between units 1401-1 to 1401-3 were prized open with sign of ransacking observed.

Room	Missing Items
1401-1	One key card to the Office; One trophy (worth HK$5,000); One ornament (worth HK$300), and One necklace with 5 Buddha amulets (worth HK$5,000).
1401-3	One projector (worth HK$5,000); 2 iPods (worth HK$4,000); Cash of HK$500; 2 sets of travelling routers (worth $2,400); 2 external hard disks (worth HK$4,500); and 4 USB drivers (worth HK$1,500).
	Total lost: $28,200

Arrest and caution

4.On 30 October 2020, the defendant was arrested.  Under caution, the defendant said that he met the two wanted persons to demand payment of debt from him.  After the commission of Charge 2, they told him that his debt was cleared.

MITIGATION

5.The defendant is aged 31, married.  They live with the defendant’s mother.  The defendant was previously a salesman earning $12,000 per month.

6.The defendant picked up the identity card a day before signing the tenancy agreement.  He rented the unit 1401-4 to start up an online shop.  He used the stolen identity card to sign the tenancy agreement to avoid payment of rents in the event that the online business was not good.

7.As to Charge 2, the defendant committed the offence due to bad peers influence.

8.The defendant’s mother also asked for leniency on his behalf.

9.The defendant in his mitigating letter vowed to turn over a new leaf as it hurts him badly to see his unwell old age mother to travel a long way to visit him weekly.  He wants to look after her in her old age.

CRIMINAL RECORD

10.The defendant has 7 court appearances with 9 convictions with 4 convictions of drugs related offences, 3 AOABH, and 1 conviction of passing counterfeits of currency notes.  The last conviction was theft which was committed a few days before Charge 2.

SENTENCE

11.When I pass sentence on the defendant, I bear in mind of all the mitigating factors put forward by the defence.

12.As to Charge 1, the defendant used the stolen identity card to sign a tenancy agreement.  I am told in mitigation that was with a view to avoid paying the rent in the event that the defendant’s online business was unsuccessful.  

13.I have the opportunity to see the lease and the documents in support for the signing of the lease.  In the lease, the email address that the defendant used appeared to be PW5’s email address.  The proof of address was also in PW5's name.

14.It was clearly a calculated move and premeditated to commit the present offence of Charge 1.  I also view it as an aggravating factor which the defence also agreed.

15.As said in Li Chang Li [2005] 1 HKLRD 864 that using an identity card relating to another person, a starting is one of 15 months.  I enhance an additional 3 months to reflect the aggravating factor.  It aggregates to 18 months for Charge 1 and reduces to 12 months after 1/3 discount.

16.As to Charge 2, it is well settled that for non-domestic burglary the starting point is one of 30 months.

17.According to the case of Cheng Wai Kai CACC 338&339/2007, the sentence can adjust upward if there is any aggravating factors:-

“(1)  The offence is carefully planned it and skillfully executed involving the use of heavy instruments or equipment.

(2)  The offence is committed by two or more people.

(3)  The offence targeted at substantial premises and involve substantial properties.

(4)  The offender is a professional burglar and not just an opportunist.

(5)  The offender has previous convictions, particularly previous conviction of similar nature.

(6)  The offender commits multiple offenses.”

18.In the present case, the stolen properties amounted to $28,200 and they still remain unrecovered.

19.The defence agreed that there is an aggravating factor presented in this case as the defendant committed the burglary with 2 other wanted persons.  I therefore enhanced the sentence by an additional 3 months.  For the burglary charge, it arrives at 33 months, reduced to 22 months after 1/3 discount.

20.To this end, I ordered 6 months from Charge 1 to be run consecutively to Charge 2.  The total sentence is one of 28 months.