HKSAR v. Ng King Him

DCCC 1098/2021

[2023] HKDC 119

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1098 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of Burglary.

Facts

2.The premises in question is Room 1601, Tsui Wing House, Tsui Ping (South)  Estate, Kwun Tong, Kowloon (the flat).  It is a domestic premises.  Since 20 February 2021, its occupants Mr and Mrs Lam (the Lams)  had gone to Yuen Long to live with Mrs Lam’s mother for the purpose of taking care of her.  When they were gone, the flat’s wooden door was closed and locked and its metal gate was secured with two metal chains and padlocks.  The Lams would return to the flat from time to time for cleaning and picking up of the mail.  Only the Lams had keys to the flat.

3.Around 4 pm on 27 February 2021, the Lams returned to the flat and discovered that the two metal chains and their padlocks were missing.  The flat’s wooden door was blocked from the inside.  After forcibly pushing the door open, Mr Lam found that the lights inside the flat were on and the defendant was sitting in a chair in the room eating a cup noodle.

4.In answer to Mr Lam’s questions, the defendant said a friend of his had told him to live in the flat, that he had been living there for two weeks, and that the refrigerator and the washing machine were already missing when he moved in.  Mrs Lam reported the matter to the police.

5.The defendant attempted to leave the flat but was subdued by Mr Lam after a brief struggle, during which Mr Lam’s right middle and ring fingers suffered abrasions, for which he declined treatment. 

6.When the police arrived, the defendant was arrested for “Burglary”.  Under caution, he admitted that he had entered the flat with his friend who had broken into it, and that he had been living in the flat for two days.

7.Mr Lam confirmed the following items missing: (i)  a refrigerator (valued at HK$4,500); (ii)  a washing machine (valued at HK$4,500); (iii)  one piece of gold ornament (valued at HK$2,000); (iv)  about 80 CDs (valued at HK$8,000); (v)  some clothes (valued at HK$5,000); (vi)  4 passports; (vii)  a tenancy agreement; and (viii)  3 keys.

8.There was damage to the flat’s metal gate, wooden door, toilet wall, kitchen wall and kitchen door.  A wooden cabinet and a shoe cabinet were also damaged when the defendant put up a struggle while trying to leave the flat.  All these items cost a total of HK$7,350 to repair.

9.In two video-recorded interviews held respectively on 27 and 28 August 2021, the defendant under caution admitted, among other things, that:-

(i)  On 24 August 2021, seeing that the mailbox of the flat was full and that its metal gate was unlocked, he thought that no one was living in the flat and he decided to burgle it.

(ii)  In the small hours of 25 August 2021, he kicked open the wooden door and found a lot of things inside the flat. He asked his friend “Au Jai” to help him move those things. With a trolley found in the flat, he removed the refrigerator and the washing machine with Au Jai.

(iii)  He sold the refrigerator, the washing machine, the CDs, the gold ornament and the clothes to a rag-and-bone man for HK$5,000. He had already used up the proceeds.

(iv)  The cup noodle, the two face masks and the cigarette butt found in the flat belonged to him.

(v)  He claimed that he just had to kick open the wooden door to gain entry as the gate was already open, and that the wooden cabinet and the walls were already damaged when he entered the flat.

The defendant’s background

10.The defendant is 31 years old.  He was locally born and was educated to secondary three level.  He and his wife separated in 2019.  He was unemployed at the time of the offence.  He had previously worked as a water tank cleaner earning around $13,000 per month, but he lost his full-time job towards the end of 2020.  From then on, he could only find odd jobs, working once or twice a week, making only around $4,000 a month.

11.All but one of his 8 previous convictions were for offences of dishonesty, namely, 4 robberies, one attempted robbery and 2 thefts.  He has no prior conviction similar to the present offence.

Mitigation

12.Defence counsel said the defendant was remorseful.  He cooperated fully with the police and admitted the offence under caution.  Considerable time and expense have also been saved by his pleading guilty.

13.The defendant committed the present offence due to financial hardship.  By the time the offence was committed, he had used up all his savings.

14.Viewing the case in the round, the defendant committing this offence with another person does not materially add to the overall culpability.

15.Defence counsel also asked the court to note that the Lams had not been living in the flat for 6 months prior to the offence, that the flat was unoccupied when it was initially broken into, and that the Lams did not seem to have felt threatened by the defendant, who did not display any aggressive behaviour towards them.

Sentencing considerations

16.3 years imprisonment is the proper starting point for a first offender of full age in a case of domestic burglary[1].

17.There are certain features justifying an upward adjustment of the above starting point for this defendant, who is not a first offender.  Although he has not been convicted of burglary before, he has committed other offences involving stealing, namely theft and robbery. In fact, almost all of his convictions were for such offences.

18.Having said that, the defendant’s criminal record is not so bad as to justify a substantial raise in the starting part.  A majority of his convictions were for offences committed when he was still a teenager.  Moreover, his last conviction was some 7 years ago.

19.Regarding enhancement for his criminal history, I agree with and adopt what the Court of Appeal said about the applicant in HKSAR v Yeung Kam Tung CACC 427/2012, in paragraph 14 of its judgment: “…Undoubtedly, he is a person who needs to be deterred but we are not convinced that he should be placed in the category of persons from whom society needs to be protected.  That view of him may need to be revisited should he offend again in the future.”

20.In principle, the fact that the defendant committed the present offence in concert with another person makes it more serious than an offence committed by a single perpetrator.  However, it is not clear what role the other person played, except for a very generalised admission by the defendant at the time of his arrest that it was his friend who broke into the flat.  This claim seems to be at odds with his admission during the video-recorded interviews that he had gained entry into the flat by kicking its door open.

21.I tend to agree with defence counsel’s submission that the fact that this burglary was committed with another person does not materially add to the overall culpability.

22.I also note that there are no indications that the Lams were alarmed or felt threatened by the defendant’s intrusion, that Mr Lam’s injuries were deliberately inflicted by the defendant, or that the damage to the various walls and doors were caused by him.

23.Given the above circumstances, I consider 3½ years’ imprisonment to be a proper starting point in this case.  In considering this starting point, I have not overlooked the fact that the estimated values of the items stolen amount to a total of $24,000.

24.Having carefully considered the facts and the mitigation submissions, I am of the view that the only effective mitigating factor in this case is the defendant’s plea of guilty at the earliest opportunity, for which he will be given a one-third discount in sentence.  The sentence after such a discount is one of 2 years and 4 months’ imprisonment.