HKSAR v. Lee Chun Lok and Another

DCCC 891/2022

[2024] HKDC 74

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 891 OF 2022

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REASONS FOR SENTENCE

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D1 faces 9 charges of "Burglary" (Charges 1, 2, 3, 4, 5, 8, 9, 10 and 14). D2 faces one charge of "Handling stolen goods" (Charge 6)  and one charge of "Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong" (Charge 15). D1 and D2 are also jointly charged with 4 offences of "Burglary" (Charges 7, 11, 12 and 13).

2.D1 pleaded guilty to Charges 1 to 5, 7 and 10 to 13.  I granted the prosecution's application to leave Charges 8, 9 and 14 in the court file; not to be proceeded against him without leave of court.

3.D2 pleaded guilty to Charges 6, 7, 11, 12 and 15.  I granted the prosecution's application to leave Charge 13 in the court file; not to be proceeded against him without leave of court.

Summary of Facts

4.Since August 2021, D1 became the sole owner of a red Volkswagen Golf with plate number XC4825 ("the Car").  He has never lent its keys or the Car to anyone.

5.In September and October 2021, a total of 10 lower floor residential units situated at various districts in northern New Territories were burgled.  The evidence against D1 and D2 came primarily from their own admissions.

Charge 1 (1 September 2021)

6.The residential flat as particularized in Charge 1 ("Flat 1")  was burgled between 0830 and 2100 hours on 1 September 2021.  A jade necklace (valued at $50,000); and a safe which contained $10,000 cash and the title deeds of one Hong Kong property, 2 mainland properties and a car parking space at Mei Foo Sun Chuen were stolen.

Charge 2 (between 2 and 15 October 2021)

7.The residential flat as particularized in Charge 2 ("Flat 2")  was burgled between 1700 hours on 2 October and 2359 hours on 15 October 2021.  RMB500 cash (divided into 50 lai see packets)  was stolen.

Charge 3 (8 October 2021)

8.The residential flat as particularized in Charge 3 ("Flat 3")  was burgled between 0950 and 2120 hours on 8 October 2021.  A diamond bracelet (valued at $5,000); a K-gold necklace (valued at $3,000); a diamond pendant (valued at $5,000); a pearl and diamond ring (valued at $2,000); and a pearl and diamond pendant (valued at $2,000)  were stolen.

Charge 4 (8 October 2021)

9.The residential flat as particularized in Charge 4 ("Flat 4")  was burgled between 1700 and 2350 hours on 8 October 2021.  A gold necklace (valued at $15,000); 3 gold rings (valued at $10,000); a diamond ring (valued at $8,500); a pair of fish-shape gold earrings (valued at $2,000); a panda commemorative coin (valued at $11,000); a gold medal (valued at $1,000); a pearl necklace (valued at $1,000); a gold bracelet (valued at $2,000); and SGD200 cash were stolen.

Charges 5 and 6 (18 October 2021)

10.The residential flat as particularized in Charge 5 ("Flat 5")  was burgled between 0830 and 1730 hours on 18 October 2021.  A HKSAR passport; a U.S. Permanent Resident card; a U.S. identity card; 2 diamond rings (valued at $10,000); a platinum necklace (valued at $15,000); a gold necklace (valued at $5,000); RMB10,000 cash; MYR10,000 cash; a black LV handbag (E1; valued at $20,000); 2 watches (valued at $10,000); 3 gold bracelets (valued at $40,000); and a credit card (E2)  were stolen.

11.E1 and E2 were subsequently found in D2's home.

Charge 7 (18 October 2021)

12.The residential flat as particularized in Charge 7 ("Flat 6")  was burgled between 1200 and 2046 hours on 18 October 2021.  A pearl and gold necklace (valued at $2,555); $5,000 cash; a Swarovski crystal necklace (valued at $1,000); a platinum and diamond necklace (valued at $4,000); a dark green Loewe handbag (E3; valued at $3,000); a brand new brown LV wallet with receipt inside; and a pair of Dior glasses (E4)  were stolen.

13.E3 and E4 were subsequently found in D2's home.

Charge 10 (24 October 2021)

14.The residential flat as particularized in Charge 10 ("Flat 9")  was burgled between 1400 and 2100 hours on 24 October 2021.  Cash in various foreign currencies (valued at about $20,000); $50,000 cash; 4 gold necklaces (valued at $40,000); 2 gold bracelets (valued at $10,000); 3 gold coins (valued at $3,000); and a Rolex watch with serial number U788434 (valued at $70,000)  were stolen.

Charge 11 (25 October 2021)

15.The residential flat as particularized in Charge 11 ("Flat 10")  was burgled between 0930 and 2045 hours on 25 October 2021.  Two diamond rings (E5; valued at $40,000)  were stolen.

16.E5 was subsequently found in D2's home.

Charge 12 (between 25 and 26 October 2021)

17.The residential flat as particularized in Charge 12 ("Flat 11")  was burgled between 1200 hours on 25 October and 2050 hours on 26 October 2021.  A diamond ring (E6; valued at $15,000); a gold ring (E7; valued at $2,500); a gold bracelet (valued at $2,000); a silver wedding ring (E8; valued at $8,000); a platinum chain for baby (valued at $4,000); a chain for baby with gold charms (E9; valued at $1,500); a gold bufonid accessory (E10); a gold brave troops accessory (E11); a gold windmill accessory (E12); and a pair of silver rings (E13)  were stolen.

18.E6 to E13 were subsequently found in D2's home.

Charge 13 (26 October 2021)

19.The residential flat as particularized in Charge 13 ("Flat 12")  was burgled between 1230 and 2030 hours on 26 October 2021.  No property was found missing.

Arrest

20.On 27 October 2021, D1 was arrested outside Chung Fu Shopping Centre in Tin Shui Wai.  Under caution, he claimed that he was instructed by a mainlander named "Ah Kuen" via phone calls to drive him to burgle using D1's own private car.

21.D2 was also arrested on 27 October 2021.  Under caution, he claimed that it was the man in the red car who asked him to burgle.

22.In his 6^th video recorded interview ("VRI"), D1 admitted having driven "Ah Kuen" and "Ah Sin" to Flat 1 to burgle.  He described in details how he received instructions from Ah Kuen via WeChat about driving them to burgle.  D1 also admitted having received $3,000 as his reward.  In his other VRIs, D1 made similar admissions in relation to Charges 2, 3, 4, 5, 7, 10, 11, 12 and 13.

23.In his 1^st VRI, D2 admitted that he was on board of the Car driven by "Ah Lok" and acted as a lookout for "Lo Heung" to burgle a location between 1800 and 1900 hours on 18 October 2021 (i.e. Charge 7).  D2 also admitted having received $2,000 per day as his reward.  In his other VRIs, D2 made similar admissions in relation to Charges 11 and 12.

24.Regarding Charge 15, there was no valid immigration entry record of D2.  He admitted in his 3^rd VRI that he does not have a Hong Kong Identity Card and came to Hong Kong illegally.

25.WeChat text messages between D1 and D2 supported their respective admissions in relation to Charges 5, 11, 12 and 13.

Mitigation

D1

26.He is 35 and has 6 conviction records, which included 2 "Robbery" offences, 1 "Theft" offence, and 3 "Burglary" offences.  His counsel Ms. Tsang informed me that D1 is married with 2 children (aged 9 and 7).  Prior to the pandemic, D1 was a contractor earning $20,000 per month.  He lost his job in 2020.  In mitigation, Ms. Tsang submitted that D1 was under significant financial pressure, so he foolishly accepted the offer to drive other culprits to commit burglaries.  Ms. Tsang further submitted that D1 was only arrested for the burglary in Charge 7, but he frankly admitted all other burglaries. Ms. Tsang stressed that without D1's admissions, the only evidence which the Police had against him was the CCTV footage capturing the Car's licence plate in relation to Charge 7.

D2

27.He is 30 and has a clear record.  His counsel Mr. Ng informed me that D2 is single.  Before coming to Hong Kong, he worked as a waiter in Zhongshan earning RMB2,000 per month with a discretionary bonus.  Mr. Ng submitted that D2's income was low and could hardly make his ends meet.  He foolishly listened to a friend who told him that he could arrange for D2 to earn about $1,000 to $2,000 per day.  In order to make some money during the pandemic, D2 came to Hong Kong illegally and followed the instructions from those who received him in Hong Kong.

Sentence

28.I note that D1 and D2 have in their respective VRIs alleged the other one being the mastermind.  For the purpose of sentencing, I need not determine who asked whom to do what.  They might have played different roles, but they acted as a joint enterprise and are equally culpable.  There is no need to distinguish their roles or to apportion their culpability.

29.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious)  is no mitigating factor for committing a crime. For D2, he purposely came to Hong Kong through illegal means to commit crimes.

30.The normal starting point for domestic burglary is 3 years' imprisonment.  Bearing in mind that each burglary in this case was committed by 3 persons acting in concert and that 10 similar burglaries were committed within a month[1], I would increase the starting point of each burglary charge to 39 months.

D1

31.He is no doubt a repeated offender. He has 3 convictions of "Burglary" (all in the same case dated September 2017)  and multiple convictions of theft-related offences.  For D1, I would increase the starting point of each burglary charge to 40.5 months.  With the timely guilty plea, the sentence for each charge is reduced to 27 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence D1 to 27 months' imprisonment each for Charges 1 to 5, 7, and 10 to 13.

32.Bearing in mind the totality principle, I consider a global starting point of 6 years appropriate for all 10 charges.  I would reduce it to 5.5 years to reflect the fact that the evidence against D1 in this case came primarily from his own admissions[2]. With the timely guilty pleas, the overall sentence becomes 44 months.  Hence, I order the sentences to run in the following manner :-

(i)  Charges 1 and 2 concurrent;

(ii)  Charges 3 and 4 concurrent, but 4 months consecutive to Charges 1 and 2;

(iii)  Charges 5 and 7 concurrent, but 4 months consecutive to Charges 1 to 4;

(iv)  4 months in Charge 10 consecutive to Charges 1 to 5 and 7; and

(v)  Charges 11 to 13 concurrent, but 5 months consecutive to Charges 1 to 5, 7 and 10.

Thus, arriving at a total prison term of 44 months.

D2

33.He has a clear record.  For each burglary charge, I consider a starting point of 39 months' imprisonment appropriate and just for him.  With the timely guilty plea, the sentence for each charge is reduced to 26 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence D2 to 26 months' imprisonment each for Charges 7, 11 and 12.

34.Regarding Charge 6, I have borne in mind the sentencing principles laid down by the English Court of Appeal in R v Webbe (Bernard)  [2002] 1 Cr App R (S)  22(which were adopted and applied by the Court of Appeal in HKSAR v Cheng Chi Wai [2012] 4 HKLRD 360). The value of E1 (an LV hangbag)  was $20,000, which is not an insignificant sum. I adopt a starting point of 2 years' imprisonment. With the timely guilty plea, I sentence D2 to 16 months' imprisonment for this charge.

35.For Charge 15, the usual starting point is 22.5 months' imprisonment. With the timely guilty plea, I sentence D2 to 15 months' imprisonment for this charge.

36.Bearing in mind the totality principle, I consider a global starting point of 4 years appropriate for Charges 6, 7, 11 and 12. I would reduce it to 42 months to reflect the fact that the evidence against D2 in this case came primarily from his own admissions. With the timely guilty pleas, the overall sentence becomes 28 months. Hence, I order the sentences to run in the following manner :-

(i)  Charges 7, 11 and 12 concurrent; and

(ii)  2 months in Charge 6 consecutive to Charges 7, 11 and 12.

Thus, arriving at an overall sentence of 28 months.

37.The sentence for Charge 15 should be served consecutive to the sentences for all other charges. In order to reduce the harshness, I order 3 months in Charge 15 to run concurrent to the sentence for all other charges. In other words, the total prison term for D2 in respect of Charges 6, 7, 11, 12 and 15 is 40 months.