HKSAR v. Hau Pak Kwan

DCCC 90/2022

[2022] HKDC 1193

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 90 OF 2022

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of “Burglary”, contrary to section 11(1)(a)  and (4)  of the Theft Ordinance, Cap. 210 (first charge)  and one count of possession of an offensive weapon or instrument fits for unlawful purposes, contrary to section 17 of the Summary Offences Ordinance, Cap. 228 (second charge). 

Facts

2.At around 2:08 p.m. on 15 October 2021, Mr. Sin Chi Tak, a security guard of Eaton Hong Kong at No. 380 Nathan Road, Kowloon (“the Hotel”), spotted the defendant in the CCTV whilst the defendant was walking up from B4/F to B3/F along the staircase in the Hotel.  Mr. Sin thus reported the matter to other colleagues.

3.At around 2:15 p.m. on the same day, Mr. Lo Wing Cheung, the security manager of the Hotel, intercepted the defendant near a lift on B3/F.  Mr. Lo asked the defendant why he was there but he did not answer.  As the defendant was holding a black jacket, Mr. Lo asked him where he got it from.  The defendant replied that he got the jacket from a used clothes collection point nearby and then put the jacket back to the collection point.  Mr. Sin and other security guards arrived.  Since it was confirmed that the defendant was not a staff of the Hotel, a report was made to the police. 

4.Whilst waiting for the police, the defendant kept requesting Mr. Sin to let him go.   At around 2:47 p.m., the defendant suddenly took out a fruit knife (16 cm in length, including a blade of 7 cm)  ("the Knife")  from the front pocket of his trousers with his right hand.  The blade of the Knife was wrapped with paper.  Mr. Sin immediately took the Knife away from the defendant.

5.At around 3:30 p.m., the police arrived and arrested the defendant.

6.CCTV of the Hotel captured the defendant entering the Hotel through the staff entrance at around 1:52 p.m. on 15 October 2021.  He was seen entering different rooms on B3/F and B4/F, including the male changing room, the sales and marketing office and the telecommunication room.  He also tried to open the door of another room but failed.  He was seen peeping through the glass panels on the doors into the security room and various offices.  Then, he was seen picking up a black jacket from used clothes collection point.  The CCTV also captured the incident when the defendant was intercepted by Mr. Lo on B3/F and subsequently escorted to the corridor of the general store area on B3/F to wait for the police. 

7.At the material times:

(a)  the defendant entered the Hotel as a trespasser, with intent to steal therein (first charge); and

(b)  the defendant had in his possession an offensive weapon or instrument fits for unlawful purposes, namely the Knife, with intent to use the same for any unlawful purpose (second charge).

Mitigation

8.The defendant is aged 38.  He was unemployed prior to the arrest.  He has not contacted his parents or other family members for a long time.  He has 48 criminal conviction records, 22 of which relate to offences involving dishonesty.

9.In mitigation, it was submitted that the defendant was a drug abuser and had taken some midazolam before commission of the offences.  He bought the knife in question and that was why the knife was wrapped in paper sheath.  He brought it along as a potential instrument connected with his intention to steal. Subsequently, when he was confronted by the staff of the hotel, he took out the knife with intent to hand it over.

10.When questioned by this Court, Mr. Lam for the defence accepted that there was confrontation with staff of the Hotel in this case and the Court’s observation that the possibility of confronting staff of the Hotel is an aggravating feature.   

11.Given the defendant’s guilty plea and remorse, this Court was urged to deal with him as lenient as possible.

Sentence

12.The subject matter of the burglary (i.e. first charge)  is a hotel.  In HKSAR v Ng Wai Hing, CACC 621/2002, when dealing with burglary of a hotel room, the Court of Appeal said:

“28. Burglary is a serious offence and burglary of domestic premises is even more serious as there is always the possibility of confrontation with the occupant who will be subject to extreme fright when a total stranger invades his privacy. The gravamen in burglary of domestic premises is the fear felt by victims that a thief should have invaded their own house. That is why it may be regarded as an aggravating factor in burglary of premises which are expected to be occupied.

29. It may not be too helpful to decide if a hotel room should be categorized as domestic or non-domestic for sentencing purpose. A hotel is in a category of its own. But the aggravating factor involved in burglary of domestic premises is certainly present in the case of burglary of a hotel room.

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31. We are of the view that burglary of a hotel room should at least attract the same sentence as that for domestic premises. …”

13.In the present case, the defendant entered the Hotel and entered several rooms with intent to steal.  Apparently those rooms were used for office purposes, not for hotel accommodation.  Given there was the possibility of confrontation with the hotel staff when entering those rooms, I consider this to be an aggravating feature.  In the circumstances, I consider the appropriate starting point to be 2 years and 9 months’ imprisonment.

14.The defendant has 22 previous conviction records relating to offences involving dishonesty.  He is regarded as a repeated offender.  For this factor, the starting point of the first charge should be enhanced by 3 months to 3 years’ imprisonment.  Apart from the defendant’s guilty plea, there is no other mitigating factor.  Given the defendant’s plea, the sentence for the first charge is reduced to 2 years’ imprisonment.

15.For the second charge, I consider the appropriate starting point should be 9 months’ imprisonment.  Given the defendant’s plea, the sentence is reduced to 6 months’ imprisonment.

16.Having considered the totality principle and the fact that the defendant brought along a knife was part and partial of the burglary, the sentence of the second charge should run concurrently with that for the first charge. Therefore, the total sentence imposed on the defendant is 2 years’ imprisonment.