HKSAR v. Lai Tak Fai

DCCC 64/2022

[2022] HKDC 1422

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 64 OF 2022

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REASONS FOR SENTENCE

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Introduction

1.The defendant is convicted of one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

Facts

2.Mr Leung (“PW1”) was the manager of the “Adidas” shop situated at Shop No 809, 8^th Floor, Langham Place, No 8 Argyle Street, Mong Kok (the “Shop”).  At all materials times, the Shop opened daily from 12 noon to 9:30 pm.  Rolling shutter was installed at the entrance of the Shop. 

3.At around 11:48 am on 12 October 2021 when the Shop was not open for business and the rolling shutter was half way up, the defendant and a male known as Wong Wai Shun (“Wong”) stood outside the Shop and called PW1 over.  The defendant asked PW1 whether there was any buy-one-get-one-free promotion.  PW1 replied in the negative and returned to work.

4.Meanwhile, Mr Chow (“PW2”) who was a staff member of another shop situated opposite to the Shop saw the defendant and Wong standing outside the Shop and extended their hands into the Shop.  The defendant took some clothes from the Shop and walked away.  PW2 immediately notified PW1 of the incident.  PW1 then intercepted the defendant and Wong.  At that time, the defendant and Wong were each holding a white jacket and there was another jacket dropped on the floor.  PW1 confirmed that all those three jackets belonged to the Shop and were worth HK$2,097 in total.  Case was reported.

5.The defendant was then arrested.  Under caution, the defendant said as he saw the jackets in the Shop which was not open yet and as there was no one around, he stole the three jackets out of greed.

Criminal Record

6.The defendant has 17 convictions resulting from 14 cases.  Out of the 17 convictions, there were 2 convictions of burglary, 10 convictions of theft and 1 conviction of attempt to obtain property by deception.  He was last sentenced on 14 July 2020 for two charges of theft and was released from custody on 22 December 2020. 

Personal background and mitigation

7.The defendant was born in March 1973 and is now 49 years old.  He received education up to Form 3 level.  He is single.  Prior to his detention as a result of commission of the present offence, he used to live with his parents and work as a hair dresser on a casual basis.  I was informed by counsel for the defendant that the defendant has diabetes, hypertension, hyperlipidaemia and other psychiatric problems as a result of his use of drugs.

8.Counsel submitted that:

(i) the usual starting point for burglary of non-domestic premises is 30 months’ imprisonment;

(ii) there are no aggravating features in this case as there was no forced entry, no damage to or loss of property;

(iii) it was an opportunistic theft in that it was unplanned and it was triggered by momentary greed as the defendant noticed that the rolling shutter was half-raised with no one around; and

(iv) this case was akin to a shop theft than a burglary, hence a lighter sentence should be imposed: HKSAR v Khan Asif [2010] 1 HKLRD 404.

Sentence

9.For burglary of non-domestic premises, the starting point is 30 months’ imprisonment for a first offender of full age. 

10.In HKSAR v Cheng Wai Kai CACC 338/2007, Yeung JA (as he then was) said that the starting point could be adjusted upwards if there were aggravating circumstances.  One of the aggravating circumstances is when the offence is committed by two or more people.  In the present case, there was evidence that apart from the defendant, Wong also extended his hands into the Shop and carried one jacket when he was trying to go away. 

11.In Khan Asif, the Court of Appeal said sentencing should be based on a minimal entry into the premises for the purpose of stealing therein if there was anything worth stealing and that it was then decided to abandon the escapade.  On the particular and unusual facts, the Court of Appeal then lowered the sentence from 30 months’ imprisonment to 18 months’ imprisonment. 

12.Unlike Khan Asif where the Court of Appeal imposed a lighter sentence on the basis that the offender did not have anything specific in mind to steal, in the present case the defendant had decided to steal the jackets in the Shop before he extended his hands into the Shop.  The facts of this case are more serious than those in Khan Asif. 

13.Counsel for the defendant submitted that this case was akin to a shop theft rather than a burglary.  In light of the Court of Appeal’s judgment in Khan Asif, I am prepared to accept that and adopt a lower starting point.  However, as I am prepared to accept that this case was akin to a shop theft, I am not going to lower the starting point on the submission that it was an opportunistic burglary.  It is because shop theft is most commonly committed when opportunity to steal arises, eg when the shopkeeper was not around or not paying attention.  On the facts of this case, I will adopt a starting point of 24 months’ imprisonment.

14.This case was committed by the defendant and Wong, or by the defendant with the assistance of Wong.  Further, the defendant has a total of 13 dishonesty related previous convictions, including 2 convictions of burglary and 10 convictions of theft.  Coupled with the fact that the defendant committed the present offence within less than 10 months after his release on 22 December 2020, I will give an upward adjustment of 6 months. 

15.I will give the defendant ⅓ discount for his timely indication of his guilty plea.  There being no other valid mitigating factors justifying any further reduction in sentence, the defendant is sentenced to 20 months’ imprisonment[1].