HKSAR v. Law Ching Tong Aka Law Kwai Wing

DCCC 995/2022

[2023] HKDC 1108

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 995 OF 2022

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REASONS FOR SENTENCE

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A.  CHARGE

1.The defendant (D)  pleaded guilty to 1 charge of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.

2.Particulars of offence are that D, on 20 June 2022, in Hong Kong, having entered, as a trespasser, part of a building known as Nova Sky (Asia)  Limited, Room C5, 10^th Floor, Block C, TML Tower, No 3 Hoi Shing Road, Tsuen Wan, New Territories, stole therein one trolley, and one safe containing one bag, some documents, two security devices, cash of $300,000 Hong Kong currency, two watches, one cheque book and one company stamp.

B. FACTS

3.D admitted the following facts.

4.Mr Cheung Pak Yan (PW1)  is one of the owners of Nova Sky (Asia)  Limited (“Nova Sky”)  which specialized in information technology business including computer programming and situated at the Charge location.

5.The entrance door of the Charge location had an electromagnetic fingerprint lock.  There was a safe box worth $7,900 which could be opened by using the regular safe box key together with either PW1’s fingerprint or the spare safe box key.  The regular safe box key was kept in a desk drawer in the Charge location.

6.D was a proprietor of an interior decoration business.  Since April 2022, he had become a client of Nova Sky, visited the Charge location 4 to 5 times and developed a friendship with PW1.

7.On 18 June 2022, PW1 hosted a gathering at the Charge location.  D attended at around 2200 hours and left at about 0100 hours on the next day.

8.At around 0330 hours on 19 June 2022 when the gathering was over, PW1 put his Rolex watch into the safe box.  Before leaving the Charge location, he had checked that the items in the box were in order which were:-

(a)  a bag;

(b)  some documents;

(c)  two internet banking security devices;

(d)  cash of $300,000;

(e)  a Rolex watch valued at $170,000;

(f)  a Seiko watch valued at $4,000;

(g)  a cheque book of PW1; and

(h)  a company stamp of Nova Sky;

9.At around 1612 hours on 20 June 2022, the safe box and a trolley worth $200 were found missing and there was a broken safe box key on the floor.  The electromagnetic fingerprint lock of the entrance door was not functioning properly due to wear and tear, thus the door could be easily pulled open.  The safe box and all the said items inside were stolen, the total value of which was $482,100.   The case was reported to the police.

10.The two cameras of the CCTV system at the Charge location were torn down.  Its footages show that the entrance door was opened at around 0703 hours on 20 June 2022, and then the recordings went blank.

11.The footages of the CCTV at the lobby and lift of Block C, TML Tower, show D carrying a black shoulder bag and wearing a black cap entered the building shortly before 0700 hours on 20 June 2022.  He took the lift to 10/F and re-entered the lift shortly afterwards, pushing a trolley with the safe box on top.  D then left the building with the trolley and the safe box.

12.The CCTV at the carpark of D’s residence captured D’s vehicle with registration number VR6370 returning at around 0728 hours on 20 June 2022.  At around 0818 hours on the same day, D was pushing a trolley with the safe box on top and leaving the carpark.

13.A CCTV located right next to D’s office building captured D heading towards the direction of his office at about 0828 hours on 20 June 2022 and pushing a trolley with the safe box on top.

14.On 21 June 2022, the police laid ambush in D’s residence carpark.  They intercepted him at 1219 hours on the same day when he approached his vehicle.  Upon body search, a total amount of $184,990 in cash was found and seized by the police.

15.D was arrested for burglary and he said under caution “I don’t know what’s the matter”.

16.Upon search at D’s office, the safe box was located at a back staircase less than 20 m away from D’s office.  It was wrapped with carpet and covered by a plastic bag.  Green adhesive tapes of the type found in D’s office were near the box.  The box door could not be opened as its lock had been damaged.  The back wall of the box had been carved opened by 10 cm x 7 cm.  Inside the box were PW1’s bag and personal cheque book, some documents, the two internet banking security devices and the company stamp of Nova Sky.  The rest of the stolen properties were not recovered.  Hence, PW1’s total loss was $482,100.

17.D admitted that on 20 June 2022, having entered into the Charge location as a trespasser, he stole a trolley, a safe box containing a bag, some documents, two internet banking security devices, cash of $300,000, a Rolex watch, a Seiko watch, a cheque book and a company stamp.

C.  COMPENSATION

18.The Prosecution applied for compensation by D for PW1’s loss of $482,100.

D.  CRIMINAL RECORD

19.D has previous dissimilar records mostly related to dangerous drugs.

E. BACKGROUND REPORT

20.According to D’s background report, he is aged 37 and has Form 4 education.  He married twice with four children in total, 2 aged 15 and 10 from the first marriage, and 2 aged 4 and 2 from the second.  D had the care and control of the elder child from the former marriage who lives with D’s parents.

21.Before remand, D lived with his family of the second marriage in a property purchased under the Home Ownership Scheme with a monthly mortgage payment of $21,000.

22.D was a proprietor of an interior decoration business.  He made an annual profit of about $250,000 before the outbreak of COVID-19 and suffered loss thereafter.  In order to pay for the expenses of his company and family, D had incurred debts of over $1.2 million in total to various financial institutions.  As a result, he committed the present offences to address his financial problems.

23.All the debts have been settled mostly by his brother and partly by D with the properties he stole from PW1.  D further borrowed $300,000 from his brother.  Therefore, he now owes about $1.5 million to his brother.  D plans to do fitting-out work after release from prison.

24.D’s wife is an English tutor earning $22,000 to $25,000 per month.  She has become the sole breadwinner of the family after D’s remand.  In order to make ends meet, the wife has borrowed $100,000 from her mother.

F.  MITIGATION

25.The Defence submitted that the aggravating factors identified in HKSAR v Cheng Wai Kai CACC 338/2007 do not apply in this case.

26.D did not object to compensate with the cash of $184,990 seized from him.  However, he objects to compensate the balance of PW1’s loss, ie $297,110, on the basis that he does not have the means given his detention for about 13 months, his debts to his brother, his family obligations and his wife’s debts to her mother.

27.He produced, inter alia, the following materials in support:-

(a)  a receipt of Profit Harvest Credit Service Ltd showing the settlement of debt of $371,440;[1]

(b)  a repayment schedule issued by Money Houses Capital Ltd showing the settlement of debt of $361,823;[2]

(c)  receipts of KC Credit Ltd showing the settlement of debt of $361,823;[3]

(d)  documents showing the settlement of debt of $482,841 to United Asia Finance Ltd by D’s brother;[4]

(e)  documents showing the settlement of debt of $134,760 to Swiss Finance Ltd;[5]

(f)  a signed confirmation of loans in the total sum of $1,516,265 from D’s brother to D;[6]

(g)  documents showing D’s monthly household expenses, including mortgage payment, in the total sum of about $34,000;[7]

(h)  D’s savings account passbook showing a balance of $14,665.67 on 17 June 2022, ie 2 days before the offence, and a balance of $12.76 on 18 July 2023;[8]

(i)  an order made by the District Court that D has to pay $6,000 per month to support his younger daughter from the first marriage;[9] and

(j)  a signed confirmation of a loan of $100,000 from D’s mother-in-law to D’s wife;[10]

G.  SENTENCE

G.1  Imprisonment

28.The starting point of sentence for non-domestic burglary is 30 months’ imprisonment.  I agree that there is no aggravating feature in the present case.

29.The sentence is reduced by 1/3 for D’s guilty plea, the only mitigating factor, to 20 months’ imprisonment.

G.2 Compensation

30.The court must have regard to a defendant’s means in making a compensation order which must not be oppressive (Cross & Cheung, Sentencing in Hong Kong, 10^th ed, para 9-8).

31.In this case, given the materials produced by the Defence, the Prosecution fairly agreed that the court should take into account D’s means in deciding whether he should compensate PW1 for more than the amount of money already seized from him, ie $184,990.

32.Based on the above and pursuant to s 73(1)  of the Criminal Procedures Ordinance, Cap 221 (CPO), I order D to pay to PW1 compensation in the sum of $184,990 for loss of property; and pursuant to s 73(3)  of CPO, I order that such compensation be paid out of the cash of $184,990 taken from D by the police.

33.Furthermore, I am satisfied that D does not have sufficient means to pay the balance of PW1’s loss and hence I make no compensation order in respect of the said balance.

G.3  Conclusion

34.Accordingly, D is sentenced to 20 months’ imprisonment and ordered to compensate $184,990 to PW1.

H.  POSTSCRIPT

35.Although D had incurred heavy debts at the material times, this was no excuse to burgle and steal properties of substantial value from the place of anyone, let alone PW1 who was his friend.  Thus, D was not only selfish but also despicable.  While a compensation order for the balance of PW1’s loss cannot be made in this criminal proceeding for the reasons stated above, this is no bar to instituting civil proceedings against D for the said balance if PW1 so wishes.