HKSAR v. Lau Po Sing

DCCC 694/2021

[2022] HKDC 796

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 694 OF 2021

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REASONS FOR SENTENCE

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1.The defendant is charged with one count of burglary to which he pleaded guilty.

BRIEF SUMMARY OF FACTS

2.PW1 Ms Lui lives with her 10 years old daughter and 85 years old mother at Room 3415 of Yiu Lung House (“the flat”), Tin Yiu Estate, Tin Shui Wai, New Territories, Hong Kong (“the building”).  The flat has a door and a gate.  The gate was always left unlocked.

3.The defendant lives at Room 3203 of the building.

4.On 15 May 2021, PW1 and her family left home in the morning after locking the door. At about 4:23 pm, PW1, through the live-streaming CCTV she installed in her flat, saw a masked man (later known to be the defendant)  inside her flat.  She called the security guard and rushed back home.  She found HK$200 in cash and a laptop worth about HK$3,500 went missing. 

5.Police investigation revealed that earlier the same day, PW1‘s daughter left a key in the door lock when she went inside the flat to get something.  When she left the flat, the key was gone and a masked man was standing nearby.

6.Acting on information, police raided the defendant’s residence on 24 May 2021 at about 7:00 pm.  Only the defendant’s parents were inside.

7.On the same day at about 10:30 pm, a masked man (later known to be the defendant)  went to PW1’s flat and asked her to drop the case with the police and promised to compensate her for the laptop.  PW1 called the police.

8.On the same day at about 10:49 pm, a call was made to PW1’s mobile phone (5340 6660), a male whose voice was similar to the defendant asked her not to sue him.

9.On the same day at about 11 pm, PW1 received a similar call from the defendant. 

10.On the same day at about 11:05 pm, PW1 called the telephone number and asked the defendant to go to her flat.  The defendant refused.

11.On the same day at about 11:56 pm, the police swept the building and intercepted the defendant on the 21^st floor stairwell.  The defendant was body searched and a key with a brown leather keychain was seized from his left trouser pocket. 

12.The defendant was then arrested for burglary.  Under caution, he admitted he found the key outside the flat and used it to enter the flat where he stole HK$200 in cash and a laptop.  The laptop had already been discarded. 

13.PW1 identified the key as the missing key.

14.On 25 May 2021, during the video-recorded interview, the defendant admitted under caution:-

(a)  the telephone number was his;

(b)  he learnt PW1’s phone number and her address from the tag of an old lady he had once escorted back to her home some time ago;

(c)  he learnt from his parents about the police’s raid; and

(d)  he had called PW1’s phone number to inquire about the case.

15.Investigation revealed PW1’s mother had once been escorted back to her flat by a young man.  She had a tag with PW1’s telephone number and address written on it.

16.Preliminary investigation of PW1’s and the defendant’s mobile phone showed matching call records.

17.At the material time, the defendant having entered PW1’s flat as a trespasser, stole HK$200 and a laptop.

18.Based on the defendant’s plea of guilty, admission of the above summary of facts, he is duly convicted.

RECORD

19.The defendant has 12 previous convictions with one similar to the present offence.

20.Mr Terry Kan, counsel represents the defendant for plea and mitigation.

BACKGROUND

21.The defendant is 34 years old, single, lives with his parents.  He completed Form 5 education.  Before he was arrested, he was working as a full-time warehouse keeper earning HK$15,000 per month.

MITIGATION

22.The defendant’s main mitigating factor is his plea of guilty.  He is remorseful for what he had done and undertakes not to re-offend in future.  He wishes to apologize to PW1 and is willing to pay her HK$3,700 as compensation.  He is a drug addict and is now willing to quit his vice habit.  It is his wish to re-unite with his parents as soon as possible (as he has been remanded in custody since 24 May 2021)  and pleads for court’s leniency.  The defendant’s letter for mitigation is submitted to court to show his remorse and determination to turn a new leaf.

23.His counsel Mr Kan submits, in AG v Lui Kam Chi, CAAR 1/1993, the Court of Appeal held the appropriate starting point for a single offence of burglary of domestic premises by a first offender is 3 years’ imprisonment. 

24.Given all the circumstances of the case, the defendant’s remorse and his timely plea, Mr Kan urges the court to adopt 3 years’ imprisonment as starting point and give the defendant the full 1/3 discount.

25.This morning when Mr Kan appears for the defendant for mitigation, he urges the court not to adopt the conventional starting point when sentencing the defendant.  He submits the facts of this case indicated it is a sneaking-in case, not the standard burglary.  He refers to the reasons for sentence in DCCC 1057/2015 which is the burglary case the defendant was convicted back in 2016.

26.In consideration of sentence, the sentencing judge had considered the case of SJ v Tsang Hon Yin, Anthony, CAAR 5/2004.  It was mentioned in the judgment of HKSAR v Sim Ka-wing, CACC 450/2000 the following “The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find.”

27.The case HKSAR v Cheung To Ming [2006] 2 HKLRD 259 was also considered. The Court of Appeal in the judgment said “We are satisfied in the present case that the only safe basis for dealing with the appellant is to regard him as having been in the same position as a “sneak thief” who was able to walk into the Centre at some stage after one or more others had broken into it.  On this basis, the appellant was entitled to receive a lesser sentence than would usually be given for a burglary of this type.  We consider that an 18-month starting point would meet the justice of the case having regard to the most unusual circumstances in which it seems the appellant committed this burglary…”.

CONSIDERATION

28.Section 11(4)  of the Theft Ordinance, Cap 210 provided the maximum sentence on conviction upon indictment is 14 years’ imprisonment.

29.For the offence of burglary of a domestic premises, the basic starting point is 3 years’ imprisonment.

30.The Court of Appeal has time and time again stated the basic starting point is applicable to a first offender, and the sentence should be adjust upward if there are aggravating factors or downward if there are mitigating factors. 

31.In the present case, the premises the defendant burgled is a domestic premises.  In deciding whether the basic starting point of 3 years’ imprisonment should be applied in his case, I take into consideration of the following:-

(a)  The defendant is not a first offender. He can be described as a persistent offender. For the past 15 years, from 2006 up to 2021, he has accrued 12 conviction records, mostly drugs related, and assorted crime such as arson, using a false instrument, A.O.A.B.H., and dishonesty related offences. In 2007, for 2 counts of robbery, he was sentenced to 4 years 7 months’ imprisonment (reduced on his appeal against sentence). In 2016 he was sentenced to 10 months’ imprisonment for burglary. This is his second conviction for burglary after a lapse of 6 years.

(b)  According to his letter for mitigation, in the past, he led an unruly life, instead of getting a decent job, he resorted to making “quick money” by unlawful means. His conviction records suggest he has a long drugs addiction history since 2006. His last conviction is 24 February 2021 for possession of Part 1 poison. He claims he committed the present offence under the influence of dangerous drug. In view of his drug-related conviction records, it is highly probable that his unruly life in the past was attributed to his vice habit. He now claims he has gained insight and is determined to be rid of his vice habit and to start afresh.

(c)  The facts of this case do not seem to be particularly serious. In my view, it falls into the category of “opportunistic crime” when the defendant by chance noticed the door key was left in the key hole. He committed the offence alone. The offence was committed in the afternoon when there was nobody inside. It would be much more serious if it was committed in the middle of the night when the occupants inside the flat were startled in their sleep. The value of stolen property is not substantial and he did not damage anything inside the flat. However, I would add that he is lucky not to be charged also for attempt to pervert the course of justice in the light of the approaches he made to PW1 after he learnt the police was looking for him.

(d)  I do not think the defendant has advanced any real mitigating factor. Saves that he is willing to compensate the victim for her loss, his strongest mitigating factor is his plea of guilty.

32.As to whether the conventional starting-point should be lower in this case, I have taken into consideration of the following:-

(a)  this case can be described as an opportunistic burglary barely because the door key to the burgled premises was left in the door lock and it so happened the defendant saw it there, and took it. I say barely because it is not the case the defendant entered the premises there and then to commit the offence. He took the key, kept it and returned to the premises in the afternoon to commit the burglary and that is indicative of premeditation on his part.

(b)  this case can be distinguished from facts of the case HKSAR v Cheung To Ming. In that case, the Court of Appeal said “We are satisfied… the only safe basis for dealing with the appellant is to regard him as having been in the same position as a “sneak thief” who was able to walk into the Centre at some stage after one or more others had broken into it”. Whereas in this case, as said, the defendant found the key in the door lock, kept it and returned later to commit burglary.

33.Having taken all of the above into consideration, I am of the view that the basic sentence of 3 years’ imprisonment is a suitable punishment in this case.  For the defendant’s timely plea, he can be given the full 1/3 discount on the sentence.

SENTENCE

34.The defendant is sentenced to 2 years’ imprisonment.

35.He is ordered to pay HK$3,700 as compensation for the victim’s loss (payment-in has been effected this morning).