HKSAR v. Lee Kwai Heung

DCCC 97/2022

[2023] HKDC 71

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 97 OF 2022

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.Mr Lee pleaded guilty before me to two charges, namely Charge 1 of Attempted burglary, contrary to section 11(1)(a)  and (4)  of the Theft Ordinance, Cap 210, and section 159G of the Crimes Ordinance, Cap 200; and Charge 2 of Resisting a police officer in the due execution of his duty, contrary to section 36(b)  of the Offences against the Person Ordinance, Cap 212.

2.Particulars of Charge 1 are that he, on 14 November 2021, in Hong Kong, attempted to enter as a trespasser part of a building known as Ground Floor, No 277C Cheung Sha Wan Road, Sham Shui Po, Kowloon, with intent to steal therein.

3.Particulars of Charge 2 are that he, on the same date, at the rear lane, No 38H Kweilin Street, Sham Shui Po, Kowloon, in Hong Kong, resisted Police Constable 20367, a police officer of the Hong Kong Police Force, in the due execution of his duty.

Facts admitted by Mr Lee

Charge 1

4.On 14 November 2021, at about 5 am, the intruder alarm of a jewellery shop situated in Cheung Sha Wan Road was set off. Police  responded and attended the shop. There was a 1.5 metres high signboard with the words “Cleaning in Progress - Caution Wet Floor” placed near the shop’s entrance with a black rubbish bag covering the top of the signboard. Mr Lee was wearing a fluorescent yellow vest for cleaning service contractors hired by the Food and Environmental Hygiene Department. He was seen crouching in front of the right side of the roller shutter of the shop behind the signboard and prizing the roller shutter with a screwdriver (Exhibit 4).

Charge 2

5.PC 20367 (PW2) asked Mr Lee what he was doing. Mr Lee replied he was carrying out renovations there and immediately fled. PW2 gave chase and Mr Lee ran into the rear lane of No 38H Kweilin Street where he dropped a spanner onto the ground. He then climbed up the scaffolding erected at the rear lane and dropped Exhibit 4 onto the ground. PW2 grabbed onto Mr Lee’s ankles and demanded that he return to the ground. Mr Lee ignored him and kicked towards PW2’s head twice with his left leg. PW2 ducked down and avoided the kicks.

6.Sgt 6328 (PW3) and PC 26425 arrived at the scene and tried to grab onto Mr Lee’s leg but the latter kept struggling. Suddenly, Mr Lee declared he had a knife in his pocket and placed his hand near his right front trouser pocket. Since Mr Lee continued to ignore the officers’ repeated warnings that he takes his hand away, PW2 struck Mr Lee’s right forearm with a baton. WPC 19081 (PW4)  also used pepper spray on Mr Lee’s face. However, Mr Lee still continued to struggle and kick towards PW2’s direction. PW4 dispersed pepper spray again on Mr Lee’s face. Finally, Mr Lee calmed down and was subdued.

Arrest and investigation

7.Mr Lee was arrested at 5:14 am the same day.

8.In a VRI conducted on the next day, Mr Lee admitted that he had tried to use Exhibit 4 to prize open the shop’s roller shutter so that he could steal therein; that he was there for about 10 minutes before the police arrived.

9.Prize marks were found at the right rear part of the shop’s roller shutter. Nothing had been stolen from the shop.

Criminal record

10.Mr Lee has 6 previous convictions 3 of which (including the last theft conviction)  were similar to Charge 1 and one other of which related to an offence of violence. His last sentence was for a theft conviction and it was recorded on 28 September 2022 which is after the date of the present offences. Prosecution informed me that the present offences were committed whilst Mr Lee was on police bail for that last theft offence.

Antecedents

11.Mr Lee is aged 35 (34 at the time of the offences), educated to F1 level in Hong Kong, was unemployed at the time of arrest. He lived with his parents in Tung Chung.

Mitigation

12.Mr Kenneth Wong of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Lee. The following is a summary of the mitigation submissions.

13.Mr Lee was born in the Mainland and came to Hong Kong when he was 9. His parents are now in their 60s. Mr Lee stopped working as a delivery worker in 2021 due to downturn in economy. He committed the offence subject of Charge 1 because of financial difficulty and committed the offence subject of Charge 2 because he wanted to escape from the police. Mr Lee shows his remorse by pleading guilty and he asks for a lenient sentence.

14.The starting point for burglary concerning non-domestic premises is 30 months’ imprisonment. In HKSAR v Cheng Wai Kai, CACC 338 & 339/2007, the Court of Appeal held at para 15 that:-

“The starting point can be adjusted upwards if there are aggravating circumstances such as; (sic)  (1)  the offence is carefully planned and skillfully executed involving the use of heavy instrument or equipment; (2)  the offence is committed by two or more people; (3)  the offence targets at substantial premises and involves substantial properties; (4)  the offender is a professional burglar and not just an opportunist; (5)  the offender has previous convictions, particular previous conviction of similar nature, and (6)  the offender commits multiple offences.”

15.In this case, Mr Lee had only used a screwdriver to prize open the roller shutter where prize marks were found. It was submitted that Mr Lee was not a professional burglar involving heavy equipment. Mr Wong however acknowledged that commission of an offence whilst on bail is an aggravating factor justifying an enhancement of the starting point for sentence; but he submitted that since Charge 2 resulted from Charge 1, the starting point of Charge 2 should not likewise be enhanced in order to avoid a double-punishment.

16.Under Charge 2, Mr Lee tried to escape by kicking towards the direction of police officer. No weapon was used and no injury was caused. It was submitted that a low starting point of 3 months’ imprisonment for Charge 2 would be appropriate.

17.Mr Lee pleaded guilty and is therefore entitled to a 1/3 discount on sentence.

18.It was accepted that the offence of resisting arrest would normally call for a consecutive sentence. However, it was submitted that on considering totality, part of the sentence on Charge 2 may be served concurrently with that on Charge 1.

Sentence

19.Prosecution informed me that they would withdraw the last sentence of para 8 of the Re-amended Summary of Facts from the factual basis of Charge 1. Defence has no objection. I accept that withdrawal. The withdrawn part will form no part of my consideration of the sentence.

20.For Charge 1, I adopt an initial starting point of 30 months’ imprisonment. Because of the aggravating factor of commission of the offence whilst on bail, I will increase the starting point to 33 months’ imprisonment.

21.The maximum sentence for the offence subject of Charge 2 is a term of 2 years’ imprisonment.

22.For Charge 2, given the seriousness of Mr Lee’s action in trying to kick the officer’s head with his foot more than once, I adopt a starting point of 4.5 months’ imprisonment. I will not double-punish Mr Lee by enhancing the starting point again on account of his commission of this offence whilst on bail, for the reason that the offence subject of Charge 2 flowed directly from the offence subject of Charge 1.

23.Mr Lee pleaded guilty in good time so he shall be entitled to the full 1/3 discount in sentence. There are no other mitigating factors of weight to justify a further discount.

24.In principle, the two sentences ought to run consecutively to one another. However, on totality grounds, I will allow partially concurrent sentences.

(Mr Lee, please stand)

25.For Charge 1, I sentence Mr Lee to 22 months’ imprisonment.

26.For Charge 2, I sentence Mr Lee to 3 months’ imprisonment.

27.I order that 2 months of the sentence on Charge 2 do run consecutively to the sentence on Charge 1, making an aggregate sentence of 24 months’ imprisonment.