HKSAR v. Law Man Kin
Read the full judgment text of DCCC 179/2022 on BabelCite. This District Court judgment was delivered on 11 January 2023.
1. The defendant pleads guilty to two charges, namely:-
Cites 3 cases
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DCCC 179/2022 [2023] HKDC 53 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 179 OF 2022 ________________________
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________________________ REASONS FOR SENTENCE ________________________ 1.The defendant pleads guilty to two charges, namely:-
Summary of facts 2.On 16 November 2021 at around 11 am, PW1 found ransacking signs inside the staff room of “2 café” restaurant and saw the defendant fiddle with a pile of clothes outside the restaurant. 3.When confronted by PW1, the defendant did not respond to PW1’s questions. 4.When PW1 took out his mobile phone, the defendant immediately picked up a pair of scissors and quickly left the scene. 5.PW1 followed the defendant into Mongkok MTR station. However, he lost sight of the defendant on the platform of Kowloon Tong MTR station. 6.PW1 reported case to the police. 7.On the same day, at about 12:50 pm, the police found the defendant inside a toilet in the Kowloon Tong MTR station. 8.The following items were found in the basin inside the toilet:-
9.The defendant was arrested for burglary and possession of offensive weapon. Under caution, the defendant said that “he stole things to sell since he had no money and that at the time outside the restaurant, he was afraid after he had stolen things, so he had the pair of scissors with him for self-protection.” 10.In a video recorded of interview, the defendant stated that:-
11.The stolen properties belonged to various staff of the restaurant include the following:-
CCTV 12.At around 10:12 am, the defendant entered the staff room through the rear entrance of the restaurant. He stayed there for about 43 minutes. Criminal record 13.The defendant has a long list of criminal records since 1978 to 2021. A total of 74 previous records with 63 court appearances. 14.Amongst those 74 previous records, 44 conviction records related to dishonesty offences, out of which 34 of them were theft offences. Other offences including gambling in a gambling establishment, possession of offensive weapon in 2000, managing a vice establishments, assault occasional bodily harm, drugs offences and etc. 15.His last conviction was in August,2021 for two theft offences. 16.He was released from prison in November, 2021, that was about a week ago prior to the commission of the present offence. Mitigation 17.The defendant is 69 years old. He was divorced in 2013 with no children. He lived alone in a public housing unit but the lease has been terminated by the Housing Authority in September 2022. 18.He receives social security assistance of around $4,000 per month. 19.The defendant has been suffering from sciatica as a result of an injuries to his back and left hand some 30 years ago. 20.As to other health problems, the defendant also suffers from cataract and gout. Sentence 21.It is well settled that the starting point for sentence of a burglary offence committed on non-domestic premises was 2½ years imprisonment. 22.As to the second charge, according to section 33(2)(d) of the Public Order Ordinance, it states that: “if after the age of 25 years or more, be sentenced to imprisonment for not more than three years.” 23.There is no sentencing guideline for the second charge, it depends very much on the circumstances of each case. Charge 1 24.According to the summary of facts, the staff room was located near to the rear entrance of the restaurant, the back door was not locked at the material time. Clearly it was to provide convenience to the staff. On the other hand, it also provided an opportunity for the defendant to search the staff room and to steal from therein. 25.It is clear to me that the appropriate starting point is one of two years. 26.According to the case of HKSAR v Cheng Wai Kai CACC 338/2007 that there are a number of aggravating factors that the sentence can be adjusted upward. 27.In the present case, I consider that the following matters as aggravating features:-
28.The past sentence obviously has no deterrent effect upon the defendant. 29.As said in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 that one of the purposes of passing a deterrent sentence on a persisting offender is to protect the public in general. 30.I consider that a sentence must be substantially higher in order to deter the defendant from committing further similar offenses. Otherwise, it simply loses its deterrent effect. 31.Against this background, I consider that the starting point should be adjusted upward by an additional 9 months. 32.The total sentence for charge one is 2 years and 9 months, given the 1/3 discount, it reduces to 22 months. Charge 2 33.I have the opportunity to examine the scissors itself. It is generally for household use and can be easily purchased from places like the Japan Home. The blade which is about 3 inches long which does not appear to be as sharp as a knife. The pair of scissors is also wrapped up by plastic when it is closed. 34.According to the summary of facts, the defendant took out the pair of scissors and left very quickly when PW1 intended to call the police. 35.The defendant also said that he carried the pair of scissors to protect himself as his father bore a lot of grudges with others. 36.With this information in mind, I consider that a starting point of 6 months is appropriate. I reduce the sentence to 4 months after 1/3 discount. Totality 37.The defense cited the case of Secretary for Justice v Liu Chi Yung [2007] 1 HKC 571 that “concurrent sentences were only appropriate for offences that could probably be said to have been committed in the course of a single transaction.” 38.In Liu Chi Yung’s case, the appellant used the knife (the charge of offensive weapon) to stab on the neck of the police office (the wounding charge). Obviously this is a single transaction of event. 39.However, in the present case, the defendant claimed that it was due to his late father’s background that he carried the scissors to protect himself. 40.The prosecution informed me that according to the prosecution case, the defendant did not do anything with the scissors, he just picked it up and left the scene. He did not say anything as well. 41.While the defence insisted that it was a single transaction because the defendant said under caution that:-
42.He further explained under caution that he carried the pair of scissors to protect himself because of his late father who bore grudges with others when he was alive. 43.It is clear to me that there was no evidence to suggest that the defendant used the pair of scissors in the commission of the burglary charge. 44.In the present circumstances, I disagree with the defence that I should impose a concurrent sentence as it simply cannot reflect the culpability of the offence. 45.As such, I order 2 months from charge two to run consecutively to charge one. Total sentence 46.Charge one: 22 months’ imprisonment Charge two: 4 months’ imprisonment, 2 months from Charge two to run consecutively to Charge one. It arrives at a total of 2 years’ imprisonment.
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