HKSAR v. Lo Wan

DCCC 45/2022

[2023] HKDC 304

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 45 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)(b)  and (4)  of the Theft Ordinance, Cap 210, Laws of Hong Kong.

Summary of facts

2.At the material times, Miss Yuen Chi Yan, Jenny (“PW1”)  was the registered owner of a residential flat located at Room D, 3^rd Floor, Tak Wun Building, Nos 12-16 Pak Kung Street, Hung Hom, Kowloon, Hong Kong (“the Flat”).  PW1 resided at the Flat with her boyfriend, Mr Yeung Wai Shuen (“PW2”).

3.PW1 and PW2 planned to travel abroad between 21 to 29 April 2018 (“the period”).  On 20 April 2018, PW1 listed the Flat on an online platform “Airbnb” for rent in that period.  On the same day, Miss Lee Daphne Veronica (“Lee”)  contacted PW1 through Airbnb and later they agreed that Lee would rent the Flat during the period for HK$800 per day. 

4.Subsequently, the key of the Flat was provided to Lee.     

5.On 30 April 2018, PW1 and PW2 returned to the Flat and found that the Flat had been ransacked and they immediately made a report to the Police. After checking, they found the following items were missing :-

(1)  2 game consoles with 5 controllers and 3 cables;

(2)  4 boxes of models;

(3)  5 game discs;

(4)  2 bottles of champagne;

(5)  1 recycle bag;

(6)  1 blanket;

(7)  1 bag;

(8)  1 file containing some letters;

(9)  1 keyboard;

(10)  1 mouse;

(11)  1 tablet computer;

(12)  1 speaker;

(13)  1 wallet;

(14)  1 Home Visit Permit;

(15)  1 student card;

(16)  1 suitcase;

(17)  Some clothes;

(18)  the key of the Flat;

(19)  1 ring (valued at about HK$4,000);

(20)  6 handbags (valued at about HK$20,000 in total);

(21)  1 mobile phone (valued at about HK$2,000);

(22)  1 watch (valued at about HK$1,500); and

(23)  2 credit cards.

6.Upon investigation, the Police found that the CCTV of Tak Wun Building captured the defendant took the lift to the 3^rd Floor of the building at about 12:07 pm on 29 April 2018.  It was also captured that the defendant later took the lift from 3^rd Floor to the Ground Floor carrying a black recycle bag full of items.

7.On 30 April 2018, the defendant was intercepted by the Police.  Upon enquiry, two bottles of champagne (missing item (4))  and the key of the Flat were found on the defendant.  Under cautioned, the defendant admitted that he took the key, some boxes of models and other items from the Flat.

8.The defendant was arrested and cautioned.  A house search was subsequently conducted at the defendant’s residence.  Missing items (1)  to (3)  and (5)  to (17)  were found inside his residence.   

9.During a video recorded interview, the defendant admitted under caution that he helped his girlfriend to move out of the Flat on 29 April 2018.  Out of greed, he returned to the Flat afterwards and stole the missing items.  He sold some of the stolen items and spent all the proceeds of sale.

10.At the material times, the defendant entered the Flat as a trespasser and stole from the Flat.   

Mitigation

11.The defendant is 30 years old and is single.  He was born locally and received education up to secondary Form 5.  The defendant used to work as an insurance agent but is currently unemployed.  He lives with his mother who is aged 50.      

12.The defendant has 7 previous convictions between 2014 and 2020.  The convictions include handling stolen goods, possession of offensive weapon, possession of dangerous drug, theft etc.  He was last convicted in 2020 for multiple offences of theft, possession of equipment fit and intended for smoking/injecting/inhaling dangerous drug and was sent to prison.

13.In mitigation, defence submitted that the defendant is remorseful and he committed the offence out of momentary greed.  Defence submitted that this case is not the usual type of burglary that involved breaking into the premises and therefore should be considered to be less serious.  It was also submitted that though the defendant has some previous convictions but none was burglary conviction. 

14.Concerning the discount for guilty plea, defence urged the court to give the defendant a full one-third discount despite the defendant only indicated his guilty plea after the case had been set down for trial.  Defence submitted that the defendant was supposed to have a legitimate defence if he could call his girlfriend as witness to prove that he was not a trespasser.  However, the defendant later learned that his girlfriend would not give evidence for him so he decided to plead guilty.  

15.Further, defence submitted that the defendant should be given extra discount on the ground of unreasonable delay.  Defence submitted that there is a lapse of almost 5 years since the defendant committed the offence and it was not until February 2023 that he was brought to trial.  The defendant has to endure additional pressure caused by uncertainty of the outcome of the case and should be given extra discount in his sentence.    

Sentencing consideration

16.The sentencing tariff for burglary of domestic premises is well-settled and the starting point should be 3 years’ imprisonment without any aggravating feature: HKSAR v Lau Pang [2004] 3 HKLRD 565.

17.Considered all the circumstances of the case, including the value of the stolen properties and the defendant’s criminal records, the court is of the view that 3 years is the appropriate starting point.

18.Concerning the discount for guilty plea, according to HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, if a defendant indicates his guilty plea after trial day has been fixed but before the first day of the trial, the discount should be between 20% to 25%, depending on the time at which the indication was given.  The defendant made a conscious and informed decision of pleading not guilty on the plea day.  Whether his girlfriend can give evidence that is beneficial to the defendant is pure speculation.  There is nothing before the court to suggest what the girlfriend would say if she really is called to give evidence.  All in all, the court is not persuaded that a one-third discount should be given in these circumstances.  After consideration, the court is of the view that 25% discount is appropriate in this case.

19.Concerning delay in prosecution, it is well-established that delay in bringing a defendant to justice is a mitigating factor.  Due to no fault of his own, this case had been hanging over the defendant’s head for over 4 years.  It is only right that the defendant is given a further deduction to acknowledge this mitigating factor.  Considered the length of the delay and all the relevant circumstances, I am of the view that a 2 months’ deduction is appropriate.

20.Lastly about restitution, Defence informed the court that at this stage the defendant is only able to make a partial restitution in the sum of HK$2,000.  It only represents a small portion of the loss suffered by the victim.  Nevertheless, the act of making an effort to make restitution should still be acknowledged.  Considered all the circumstances of the case, a further 1-month discount will be given.       

21.To conclude, in sentencing the defendant, the court has considered all the circumstances of the case, his personal background, his criminal record, the total value of the stolen properties, the fact that many of the stolen items were recovered and the mitigation put forward by the defence.  After consideration, the court adopts 36 months’ imprisonment as the starting point. As indicated, 25% discount will be given for the guilty plea.  Further, a discount of 2 months will be given on the ground of delay and a discount of 1 month will be given for partial restitution.  As a result, the defendant is sentenced to 24 months’ imprisonment.  The court also makes a restitution order that the defendant to pay PW1 through the court the amount of HK$2,000 within 7 days.