HKSAR v. Ko Chi Wai

DCCC 1022/2022

[2023] HKDC 980

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1022 OF 2022

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REASONS FOR SENTENCE

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1.Mr Ko pleaded guilty before me to one charge of Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. Particulars are that he, on 31 July 2022, in Hong Kong, having entered as a trespasser part of a building known as “Step Education Center Limited”, Flats A and D, 1^st Floor, Nathan Commercial Building, Nos 430-436 Nathan Road, Yau Ma Tei, Kowloon, attempted to steal therein.

Facts admitted by Mr Ko

2.On 31 July 2022 (Sunday), at around 10:30 pm, two security guards of Nathan Commercial Building, Yau Ma Tei, found a window of the office of “Step Education Center Limited” (“the premises”) on 1^st Floor prized open and they found Mr Ko inside the premises. They reported the matter to the police.

3.Police soon arrived and arrested Mr Ko. Under caution, Mr Ko admitted he was in debt so he entered the premises to steal therein. A screwdriver and a car jack were found inside the premises and were seized by the police. There were signs of ransacking. Prize marks were found and there was some damage to the windows, cabinets and doors. No property was missing.

4.CCTV footage showed Mr Ko entered at 9:56 pm from the hillside of the building. He was wearing black trousers, black jacket, blue sandals, a black cap and white and pink gloves.

5.In a subsequent cautioned VRI, Mr Ko admitted:-

(a) he broke into the premises with the screwdriver and car jack later seized by the police;

(b) he entered the premises from the hillside of the building;

(c) he prized open the window to gain entry; and

(d) after entry, he found nothing worth stealing from the premises.

Criminal record

6.Mr Ko has a clear record.

Antecedents

7.Mr Ko is aged 54 (53 at the time of the offence), educated to F3 level, unemployed at the time of arrest. Mr Ko lived with his parents (both in their 80s), wife and two daughters (27 and 25) in a village house in Tai Po.

Mitigation

8.Mr Duncan Ma of counsel mitigated on behalf of Mr Ko. The following is a summary of the mitigation submissions.

9.Mr Ko lost his job at a seafood store in Tai Po in around February 2022 when the pandemic was attacking Hong Kong.

10.The family was in financial difficulties in about March and April 2022 when savings were used up. Mr Ko borrowed about $40,000 from money lenders but could not repay the debt and was chased by debt collectors since May 2022.

11.That was the reason Mr Ko committed the offence.

12.The proper starting point for sentence in a burglary of non-domestic premises case is 30 months’ imprisonment (HKSAR v Cheng Wai Kai, CACC 338/2007, para 14).

13.Mr Ko has a clear record and he acted out of character. He made full confessions to the police. Mr Ko pleaded guilty showing remorse and he promises not to re-offend. He committed the offence alone. No sophisticated planning or careful organization was involved and no very heavy instrument or equipment was used. The premises did not house substantial properties. No property was actually stolen. Mr Ko is willing to compensate the victim for the full cost of repair in the sum of about $4,000.

14.The family financial situation has improved now that the younger daughter who was previously unemployed has found a job earning $15,000 a month. The previous debt of Mr Ko has also been repaid.

15.A friend of Mr Ko is willing to employ him in the fish trade so the chance of Mr Ko re-offending is low.

16.Mr Ma submitted on behalf of Mr Ko three mitigation letters written (in Chinese) by respectively Mr Ko’s wife, a neighbour, and a good friend. The contents are generally that Mr Ko has been a law-abiding and righteous person who loved his family. The writers asked for a chance for Mr Ko and sought a lenient sentence on his behalf.

17.The court is urged to impose a less severe sentence on Mr Ko.

18.After a short adjournment made for the purpose, Mr Ma informed the court that full compensation in the amount of $4,000 has been made to the victim by electronic means.

Sentence

19.The correct starting point for sentence in a burglary of non-domestic premises committed by a first offender of full age is 2½ years: Attorney General v Lui Kam Chi [1993] 1 HKC 215.

20.It is sad to see that someone decided to turn against the law and committed an economic crime at the rather senior age of 53 for the first time.

21.Mr Ko came prepared to burgle with the tools found in his vicinity. Some planning must have been involved. I will adopt the usual starting point for burglary of non-domestic premises ie 30 months’ imprisonment.

22.Mr Ko pleaded guilty in good time earning for himself the full 1/3 discount in sentence. For the voluntary and full compensation made to the victim prior to sentence, I will allow an additional one month to be taken off after the 1/3 discount. There are no other worthy mitigating factors.

(Mr Ko, please stand)

23.Mr Ko shall go to prison for 19 months.