HKSAR v. Lee Tsz Ho

DCCC 431/2021

[2023] HKDC 819

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 431 OF 2021

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REASONS FOR SENTENCE

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1.D2 Mr Lee appeared before me faced with two charges against him on a Charge Sheet. D1 on the same Charge Sheet has been separately dealt with by a different judge by way of plea under [2022] HKDC 758 (Reasons for Sentence in Chinese).

2.Charge 4 is Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.  Particulars are that Mr Lee, on 19 October 2020, together with D1 and Chan Ka Chung, having entered as trespassers part of a building known as Shop No 071, 2^nd Floor, Metro Town Shopping Mall, No 8 King Ling Road, Tseung Kwan O, New Territories, attempted to steal therein.

3.Charge 5 is Failing to surrender to custody without reasonable cause, contrary to section 9L(1)  and (3)  of the Criminal Procedure Ordinance, Cap 221.  Particulars are that Mr Lee, on 20 July 2022, in Hong Kong, being a person admitted to bail, without reasonable cause, failed to surrender to custody as had been appointed by a court.

4.Mr Lee pleaded guilty to those two charges.

Facts admitted by Mr Lee

Charge 4

5.WeLoveWawa (“the Shop”)  was a claw-machine shop in Tseung Kwan O that opened 24 hours for business.

6.In the afternoon of 19 October 2020, it was found that there were prise marks on one of the claw-machines in the Shop and its metal lock was damaged. Case was reported.

7.It was later revealed that:-

(a)  About 3 am the same day, D1, Mr Lee and another man X entered the Shop;

(b)  About 10 minutes later, D1 and Mr Lee were peeping at different claw-machines;

(c)  Then D1 and X approached a claw-machine; X tried to prise open it with a pair of pliers with no avail; they left the Shop;

(d)  About 3:13 am, Mr Lee left the shopping mall on his own; D1 and X returned to the Shop;

(e)  Between 3:27 and 3:29 am, Mr Lee lingered outside the Shop; and

(f)  About 3:29 am, D1 and X walked out of the Shop and joined Mr Lee; the three of them left the shopping mall soon after.

8.On 20 October 2020, Mr Lee was arrested.  Under caution, Mr Lee said:-

(a)  He met up with two of his friends for a chat and accompanied them to a claw-machine shop where he acted as lookout for them but he was not involved in prising the claw-machines;

(b)  He saw one of his friends trying to prise open a claw-machine with a crowbar;

(c)  He was merely a lookout and was not involved in the stealing; and

(d)  His friends were D1 and Chan Ka Chung.

Charge 5

9.D1 and Mr Lee were jointly charged in respect of Charge 4.  Mr Lee’s trial was set down for 3 days commencing 20 July 2022.  In breach of bail conditions, Mr Lee failed to appear on the first day of trial.  A warrant of arrest was issued against him.

10.On 26 July 2022, Mr Lee was stopped and arrested by a patrolling police officer in Mongkok.

11.In a record of interview, Mr Lee stated:-

(a)  He knew he was required to attend court for trial on 20 July 2022; and

(b)  He did not attend for the reason that he intended to plead guilty but wished to earn some money for his family before eventually surrendering to the police.

Criminal record

12.Mr Lee has 15 previous convictions 3 of which were for theft but they dated back to the years 2004-2007.

Antecedents

13.Mr Lee is aged 33 (31 at the time of the Burglary offence), educated to F5 level.  He worked as a casual worker.  He is single and used to live in Tseung Kwan O with his mother and his two younger sisters.

Mitigation

14.Mr Freddy Woon of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Lee.  The following is a summary of the mitigation submissions.

15.Mr Lee was a casual worker with daily wage of $800 before being detained.  He has two younger sisters (30 and 24 respectively)  working as a nurse and an accounting clerk.

16.On the day of the offence, before the crime, D1 and a male Chan went to have drinks with Mr Lee near the latter’s home.  D1 proposed to steal toys from a claw-machine shop in a shopping mall.  D1 told Mr Lee he only needed to act as a lookout.  D1 promised Mr Lee monetary reward from the proceeds.  Mr Lee agreed out of misguided loyalty to help his friends.

17.Mr Lee was inclined to plead guilty to the burglary charge on the trial date and was expecting an immediate prison term on conviction.  He absconded in order to earn as much as possible to help ease the family financial burden before being imprisoned.

18.Although Mr Lee has not pleaded guilty at the first opportunity, he invites the court to give him a discount of 20 to 25% because he has fully cooperated with the police.

19.His last theft conviction was more than 13 years ago so the court is urged not to place too much weight on his theft convictions.

20.The repair cost to the damaged goods was $320.  Mr Lee is willing to pay full compensation to the shop.

21.The shop was an open set of premises so there was no need to break in. In this respect, Mr Woon invited me to refer to HKSAR v Cheng Cheung Yung, DCCC 755/2017.  No one was interfered with or intimidated.  As such, the court is invited to adopt a lower starting point of imprisonment.  In the absence of aggravating factors, the general sentence for burglary of non-residential premises is 2½ years.

22.During the time when he was at large, Mr Lee did not leave Hong Kong but continued to work on a casual basis in Mongkok.  He was arrested only after 6 days.

23.It is acknowledged that the court may be inclined to impose consecutive sentences but the court is invited to consider the totality principle and impose partly consecutive sentences.

24.Mr Woon submitted on behalf of Mr Lee two mitigation letters (in Chinese with English translation)  written respectively by Mr Lee himself and his mother.  The contents are generally that Mr Lee committed the burglary offence out of foolishness, greed and peer influence; that he committed the abscondence offence because he wanted to earn more money to support his mother before being sent to prison; he hopes to become a new person after release and to walk on a correct path; both he and his mother hope the court could pass a lenient sentence on him.

Sentence

25.Although Mr Lee is willing to compensate the shop for the cost of repair namely $320, having considered Mr Lee’s means and his family circumstances and the fact that his previous bail money to the tune of $1,000 has already been forfeited, I decline to make a compensation order.

26.I note that when Deputy District Judge Peter Hui sentenced D1 on Charge 4, he did not enhance the starting point for the fact of joint enterprise though His Honour was fully alive to the issue.  That was an exercise of his discretion.  However, this court is not bound by that exercise when sentencing Mr Lee here.

27.However, I note that the subject shop was akin to an open set of premises.  In the round, after balancing out the aggravating factor of joint enterprise with this particular fact, I will simply adopt the usual starting point of 2½ years’ imprisonment.

28.In relation to Charge 5, I will adopt a starting point of 6 months.

29.Mr Lee pleaded guilty late to Charge 4.  Therefore, the customary 1/3 discount in sentence is not available to him.  Given the short period during which he was at large, I will grant him 25% discount (HKSAR v Lo Kam Fai [2016] 2 HKLRD 308 considered).  That will reduce the sentence to 22 months and 15 days.

30.On Charge 5, I will grant him the usual 1/3 discount because of Mr Lee’s timely plea.

31.There are no other worthy mitigating circumstances.

32.In principle, the two sentences ought to be served consecutively, subject only to totality.

33.After taking into account the principle of totality, I consider a degree of concurrency of sentences could be imposed.

(Mr Lee, please stand)

34.For Charge 4, the sentence is 22 months and 15 days’ imprisonment.

35.For Charge 5, the sentence is 4 months’ imprisonment.

36.I order that 3 months of the sentence on Charge 5 is to be served consecutively to the sentence on Charge 4, making an aggregate sentence of 25 months and 15 days’ imprisonment.