HKSAR v. Law Chi Po also known as Law Chi Bo and Lo Man Yam

DCCC 348/2022

[2022] HKDC 791

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 348 OF 2022

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REASONS FOR SENTENCE

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1.The defendant is convicted on his own plea and agreement to summary of facts to a charge of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.

2.PW1 was the tenant of Flat B1 on the 11^th Floor of Cheong Kee House, 4 Sai Yeung Choi Street South, Mong Kok (“the Building”).  There was a metal gate near the entrance of the Building.  PW1 had kept some of his personal belongings near the staircase on the 11^th Floor, which was a common area.  On 20 October 2021, he walked past the staircase and checked. His personal belongings were still there. 

3.On 21 October 2021 at around 0600 hours, PW1 walked past the staircase again.  He found 1 refrigerator, 1 electric stove, 1 glass suction lifter, 1 baby stroller, 1 toy piano, and 1 box containing some tools missing.  The stolen properties worth around $8,600.  He reported the case to the police.

4.CCTV footage of the Building showed it was the defendant who entered the Building at around 0309 hours on 21 October 2021.  He took away those items and left the Building later.

5.On 10 November 2021, police intercepted the defendant on anti-crime patrol at Nathan Road.  Under caution, the defendant admitted committing the offence.  He said he stole those items for his own use out of greed and later disposed of the same after he found out that the same were of no use to him. 

6.At all material times, the defendant entered part of the Building as a trespasser and stole therein.

Criminal record

7.The defendant has 59 previous criminal records involving convictions of 66 charges, of which 2 are similar and 21 convictions relating to theft.

Mitigation

8.The defendant is now aged 64.  He came to Hong Kong from Mainland at the age of 6.  He received education up to primary school level and since then he started to work.  He had previously worked as a hawker selling fruits and later he mixed with dubious peers and ended up breaking the law. 

9.The defendant divorced in 2014.  He has no family members living in Hong Kong.  For the last 30 years, he has been a street sleeper with no fixed abode and he has been receiving CSSA payment for a living.

10.It was said that the defendant committed the present offence because he suffered financial hardship and he intended to resell the stolen items to get some money to buy food and medicine.  The defendant was suffering from persistent back pain and his health condition was deteriorating because of his old age and COVID-19.

11.It was also said that the value of the stolen items is not expensive, there is no professional planning involved in the commission of the offence, and that the defendant did not use any tools or equipment in order to gain access to the building.  The defendant committed the offence on his own and he did so out of momentary greed.  It was said that he entered the building and committed the offence to some extent as an opportunist.

12.Further, defence counsel said that no physical or psychological injury or harm was caused to the residents of the building, and that the rear staircase of the building, where the items were stolen, is a common area of the building.

13.Defence counsel conceded that the starting point for non-aggravated burglary in domestic premises is 36 months’ imprisonment.  It is submitted that burglary in common area of a domestic premises is considered less severe, as the fear faced by the residents are significantly lower than that of burglary committed inside domestic homes.

14.Defence counsel referred this court to various legal authorities: HKSAR v Suen Chi Wai [2016] 1 HKC 343, 香港特別行政區　訴　廖清山, DCCC 674/2015, HKSAR v Cheung Ka Man, HCCC 156/2020, and HKSAR v Zarshad, DCCC 201 & 271/2017 (consolidated).

15.Defence counsel therefore urged this court to adopt a sentencing starting point of not more than 30 months’ imprisonment and give a further reduction in sentence by reason of the opportunistic character of the offence.  He also asked this court to give the defendant one-third sentencing discount by reason of his guilty plea.

Discussion

16.Before sentencing, this court has carefully considered all submissions by defence counsel. 

17.According to section 11(4)  of the Theft Ordinance, any person who commits burglary shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 14 years. 

18.The building in question is a building for domestic purpose.  The Court of Appeal in the case of R v Chan Yui Man, CACC 36/1988, laid down sentencing guideline for burglary of domestic premises.  It was held that 3 years’ imprisonment was the proper starting point for a first offender of full age for burglary in domestic premises.  It is also subject to adjustment upon any aggravating or mitigating factor.

19.In this case, the defendant acted alone.  There is no evidence of forcible entry or tools or violence was used in getting access to the building.  In fact, it was agreed that the metal gate of the building was always left ajar.  The mode of burglary was not sophisticated nor was there any evidence of use of machinery.  There is no planning involved.

20.The court notes however, that the defendant had, over the last 42 years, 21 theft-related convictions.  The last theft conviction was in June 2020, for which he was sentenced to 2 months’ imprisonment.  Clearly, the defendant is a persistent offender and his culpability in the case is aggravated.

21.It has been said that in the 3 years’ sentencing starting point, a certain level of planning and sophistication has been built in, which is absent in this case.  The court also noted the amount of stolen properties are not of high value. The defendant committed the offence in a common area of the building, which has caused no fear to the residents and, as said earlier, it was agreed that the metal gate to the building is always left ajar and the defendant could just go in without use of any machinery or tools.

22.Nevertheless, the stolen property was placed on the 11^th Floor in the common area of the building, so it was not noticeable to the defendant when he went past the building, not until he went inside and go up to the 11^th Floor.

23.This is a case, to some extent, similar to opportunistic burglary.  In the circumstances of the case, the appropriate sentencing starting point in this case would be 1 year and 6 months’ imprisonment, but the same is aggravated by reason that the defendant is a persistent offender and the same is aggravated by 3 months to 1 year 9 months’ imprisonment.

24.The defendant has pleaded guilty.  This is his most valid mitigating factor, of which he is entitled to full one-third sentencing discount.

25.Accordingly, the defendant is sentenced to 14 months’ imprisonment for this charge.

26.The defendant is now serving sentence regarding a conviction of possession of dangerous drugs in May 2022 (WKCC 547/2022).  The nature of that offence is totally different from that in the present case.  This court would therefore order that the sentence in the present case is to run totally consecutive to the sentence in WKCC 547/2022.