HKSAR v. Lee Pak Yui

DCCC 740/2021

[2022] HKDC 693

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 740 OF 2021

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REASONS FOR SENTENCE

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1.The defendant (“D”)  is convicted on his own plea of 1 count of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210. Particulars of Offence stated that on the 2 March, 2021, having entered as a trespasser part of a building known as “PARCEL KEEPER”, Shop C5e4, Ground Floor, Tai Wing Building, Cosmopolitan Estates, Nos 44-60 Tai Tsun Street, Tai Kook Tsui (“the Shop”), stole therein cash of about HK$500, one laptop computer, one mobile phone and two boxes of goods. The Charge referred to 2 defendants, I am only dealing with D, who is listed as D1. The other defendant, named Leung Chi Wai (“D2”)  is not before me.

Facts of case

2.The Summary of Facts admitted by D shows that the Shop as particularized in the charge was a courier pick-up shop.  In March 2020, the Shop entered into partnership with “Konglok Express”.  Keys to the Shop were provided to “Konglok Express” to facilitate its employees in picking up parcels from the Shop outside business hours.

3.Between 21 and 23 December 2020, D2 was employed by “Konglok Express” as a delivery worker and had access to the keys to the Shop.  D2 did not return his set of uniform marked with the “Konglok Express” logo upon cease of employment.  He was the only ex-employee who did so.

4.At around 2141 hours on 1 March 2021 the owner of the Shop locked the front gate and left.  Upon his return the next morning, he found signs of ransacking at the cashier table.  About HK$500 of coins, one laptop computer, one mobile phone and two boxes of goods were found missing.  The estimated value of these stolen properties was around HK$15,500.

5.CCTV footages of the Shop of 2 March 2021 captured D entering the Shop at around 0038 hours.  He was wearing a hoodie marked with the “Konglok Express” logo and a pair of gloves, and ransacked therein.  He left the Shop with a large bag at around 0048 hours.

6.CCTV footages in the vicinity of the Shop during the same period captured D alighted from a van which stopped at the junction diagonally across the Shop.  When D come out from the Shop, the van picked him up and left the scene.

7.D was arrested by the police on 25 March 2021.  In a video-recorded interview D admitted under caution, inter alia, that he unlocked the gates of the Shop with the keys, then entered and burgled therein.  He was wearing clothing marked with the “Konglok Express” logo at the time.  He arranged with D2 to take him to the Shop and left the scene in the van driven by D2.  He had sold all the stolen items and spent the money on gambling.

Defendant’s backgrounds

8.D is 31 years old, born in the Mainland on 25 January 1991.  He came to settle in Hong Kong in 2006.  He is married but in separation with his wife who is living in Shenzhen.  He resides with his parents and a younger brother in Hong Kong.  He had received education up to Form 3 level and had worked as a Chef earning about HK$16,000 per month.

9.D first transgressed the law in 2010 when he was 19 years old.  He was sentenced to Probation Order for 15 months for an offence of Possession of Dangerous Drugs.  He now has a total of 8 criminal convictions totaling 17 counts. In November 2017, for 4 counts of Burglary and 1 count of Attempted Burglary, he was sentenced to a total of 36 months imprisonment.  His last previous conviction came in April 2020 when he was sentenced to 30 months’ imprisonment for Trafficking in Dangerous Drugs.  I am told by Ms Ma for the prosecution that the information contained in paragraph (f)  of the Antecedent Statement was wrong.  D was last released from prison on 6 January 2021, less than 2 months prior to the commission of the present offence.

Mitigation

10.Mr Ng, for D, submitted in mitigation that D had been fully co-operative with the police upon his arrest and has pleaded guilty to the charge.  He is remorseful and has decided to turn a new leaf as he does not want his parents to worry about him anymore.  A letter written under D’s own hand was also submitted in support of this submission.  The value of the stolen properties is not extremely high.  While accepting the offence involved 2 culprits and that D had previous similar convictions, both of which are aggravating factors, Mr Ng urged the court to adopt the usual starting point of 2 ½ years applicable to burglary of non-domestic premises.

Sentence

11.It is well established that Burglary of non-domestic premises warrants a starting point of 30 months’ imprisonment (R v Wong Man [1993] 1 HKC 80).  In HKSAR v CHENG Wai-kai, unrep, CACC 338/2007, the CA listed 6 aggravating circumstances for burglary cases (paragraph 15 of the judgment).  The value of the stolen properties involved in this case was not very high.  There was no evidence supporting existence of those aggravating circumstances in the present case except that D committed the offence with D2 and that he has 5 previous similar convictions.  There are therefore 2 aggravating factors, each in my view warrants an upward adjustment of 3 months to the starting point.

12.Having taken all relevant matters and the mitigations put forward by Mr Ng on behalf of D into consideration, I adopt 3 years as the starting point.  1/3 discount will be given for D’s timely guilty plea.  I see no other mitigating factor.  For the offence of Burglary D is facing, he is sentenced to 2 years’ imprisonment.