HKSAR v. Lau Kok Wo

DCCC 89/2023

[2024] HKDC 175

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 89 OF 2023

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REASONS FOR SENTENCE

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1.Mr Lau pleaded guilty before me to two charges of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.

2.Particulars of Charge 1 are that he, on 12 October 2021, in Hong Kong, having entered as a trespasser part of a building known as Flat B, 8^th Floor, Kentlum Mansion, Nos 327-333 Ngau Tau Kok Road, Kwun Tong, Kowloon, stole therein cash of $50,000 Hong Kong currency, cash of foreign currencies in the total sum of about $20,000 Hong Kong currency, one backpack, cash of ¥2,000 Renminbi, one box, two gold chains, 5 pendants, two rings and one game console with 10 game cards.

3.Particulars of Charge 2 are that he, on 18 October 2022, in Hong Kong, having entered as a trespasser part of building known as Flat B, 4^th Floor, Kentlum Mansion, Nos 327-333 Ngau Tau Kok Road, Kwun Tong, Kowloon, stole therein two guitars, one passport and one bank passbook.

Facts admitted by Mr Lau

Charge 1

4.On 12 October 2021, at about 0700 hours, resident PW1 of Flat B, 8/F, Kentlum Mansion, Kwun Tong (Flat 8B), left Flat 8B after securing the premises.

5.About 1730 hours the same day, PW1 returned to Flat 8B and found signs of ransacking on the wooden door and door frame. She found the items listed under Charge 1 missing (total estimated value: $135,900).

Charge 2

6.On 18 October 2022, at about 0820 hours, resident PW2 of Flat B, 4/F, Kentlum Building (Flat 4B), left Flat 4B after securing the premises.

7.Sometime after 1729 hours the same day, PW2 returned to Flat 4B and found the wooden door prised open with signs of ransacking inside the bedroom and study. PW2 found two guitars to the total value of $2,500 missing.

8.The repair fee of the wooden door was $1,000.

9.A passport and a bankbook were found in the back staircase of the same floor. They belonged to PW2.

10.CCTV system of Kentlum Mansion captured Mr Lau wandering around and leaving Kentlum Building on 12 October 2021.

11.CCTV systems of Kentlum Building and a nearby building captured Mr Lau entering and leaving Kentlum Building and wandering in the vicinity on 18 October 2022.

12.On 19 October 2022, police mounted an arrest operation outside Mr Lau’s residence in Yuet Wah Street, Kwun Tong. In the corridor of the same floor, the police found a black plastic bag with a piece of paper with the words “Do not move, useful” in Chinese on it.

13.Underneath the black plastic bag, the police found, among other things, one electronic guitar, a wooden guitar and a grey cap.

14.At about 1737 hours the same day, Mr Lau came out of his residence, walked towards the black plastic bag and picked up the grey cap.

15.Not long, the police arrested Mr Lau for burglary. Under caution, Mr Lau stated, “The two guitars were stolen by me after I had entered the flat.”

16.During the first of two cautioned VRIs taken on 20 October 2022, he elaborated on how the theft of the two guitars took place: -

(a)  He stole the two guitars in the afternoon of 18 October 2022;

(b)  After entering the building, he walked around to see if there were any flats he could enter: he tested the flat by pressing the doorbell and looking out for any sound; on one occasion, he did not hear any sound so he prised open the door and iron grille with a screwdriver; after entering the flat, he took two guitars, a passport and a bankbook with gloves on; and

(c)  He threw away the screwdriver, the gloves, the passport and the bankbook.

17.During the second cautioned VRI taken on 20 October 2022, Mr Lau stated the following in relation to the burglary that took place on 12 October 2021: -

(a)  He committed the offence but he could not remember which flat it was; he could only recall there were a lot of foreign currencies and jewelries;

(b)  He sold the foreign currencies and jewelries;

(c)  He prised open the door with a screwdriver to enter the flat and threw away the screwdriver afterwards; and

(d)  He could enter the building as the security guard opened the door for him after he pressed the bell.

Criminal record

18.Mr Lau has 37 previous convictions 21 of which were related to offences under the Theft Ordinance, Cap 210, including 4 burglaries or attempted burglaries, 13 thefts or attempted thefts one of which was committed post the present offences.

Antecedents

19.Mr Lau is aged 47 (46 at the time of the second offence herein), educated to F1 level. He worked as a transportation worker. Mr Lau lived with his mother and sister in private housing in Kwun Tong.

Mitigation

20.Ms Nicole Chun of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Lau. The following is a summary of the mitigation submissions.

21.Mr Lau had worked as a casual transportation worker for over 10 years, earning a daily wage of around $500. His income was unstable and he was unemployed at the time of the two offences. He committed the present offences due to his financial difficulties.

22.After Mr Lau was granted bail in June 2023 to handle his late daughter’s funeral arrangements, he committed further offences due to extreme emotional distress. Following his divorce in 2004, his late daughter started living with his divorced wife. He got to see the daughter twice a month.

23.While serving his sentence, Mr Lau participated in a life-transforming course organized by a religious group. Since completing the course, he engaged in deep reflection and realized that any difficulties or financial problems should be resolved through lawful means. He regrets very much for committing these offences. He has decided to turn over a new leaf. He plans to enroll in vocational training courses, such as carpentry and painting, while serving his sentence in order to equip himself for post-incarceration employment and reformation. A Pastor Lam has promised to give Mr Lau a job upon the latter’s release.

24.Mr Lau pledges to the court that he will completely reform himself and refrain from committing any further offences. He expresses his desire to apologize to the affected homeowners.

25.Mr Lau implores the court for leniency, hoping for an opportunity to be released early to take care of his 77-year-old mother.

26.Mr Lau fully cooperated with the police with admissions and indicated his plea early. He abandoned the passport and bank passbook subject of Charge 2 on the rear staircase of the premises; they were promptly recovered. Mr Lau was not caught red-handed; he was not arrested on the day of either of the offences. No CCTV caught Mr Lau in the act of committing the offences. Had Mr Lau not admitted the offences under caution, the police would have difficulties in pinning down Mr Lau as the culprit, given the unclear CCTV footages and the fact that the suspect was wearing mask and cap.

27.For burglary of domestic premises, the Court of Appeal has established clear sentencing guidelines, with a starting point of 3 years’ imprisonment (see HKSAR v Ng Wai Hing [2003] 2 HKLRD 338 and HKSAR v Tsang Kai On, CACC 79/2010).

28.In cases where a defendant voluntarily pleads guilty despite insufficient prosecution evidence, it demonstrates genuine remorse. In such situations, the Court of Appeal has recognized the need to give a greater than normal discount upon a plea to serve the public interest to encourage an offender to “own up” to his misdeed and to face the consequence (see HKSAR v Tsang Kai On, supra, at para 15; HKSAR v Ng Wing Chung, CACC 176/2005, at paras 18-21; and HKSAR v Hui Chi Tong, CACC 414/2007, at paras 25-26).

29.The court is urged to apply the totality principle and impose partly concurrent sentences given both offences are similar nature and were committed in the same building.

30.Ms Chun submitted a letter written in Chinese by Mr Lau himself. The contents are generally that since the passing of his daughter in June 2023, he has decided to reform himself from his criminal past with a determination to stay away from prison.

Sentence

31.In accordance with the norm, I adopt a starting point of 3 years’ imprisonment for each of Charges 1 and 2.

32.In line with the principle and spirit enunciated in the passages relied on by Ms Chun in Ng Wing Chung and Hui Chi Tong (both supra), I will exercise my discretion to give Mr Lau a further discount on top of the customary 1/3 sentencing discount for pleading guilty in good time.

33.However, I cannot ignore the fact that Mr Lau carries with him a long history of similar criminal records which shows he is not only a recidivist but a recalcitrant one at that. The public must be protected and he must be deterred with extra force.

34.As such, the opposing factors enumerated in the previous two paragraphs cancel out each other resulting in no change in the sentences after the 1/3 discount.

35.It is unfortunate what happened to Mr Lau’s late daughter but I note that since his divorce, the daughter had been living with the divorced wife. The claim that he committed further offences (item 20 in the criminal record)  including another theft after he was given bail (no doubt on compassionate grounds)  because he was under emotional distress cannot be overplayed.

36.I cannot discern from the mitigation any other grounds on which to lower the sentence further.

37.The offences were committed one year apart and do not qualify as one continuing criminal activity.

38.Other than under the principle of totality, there are no grounds to making the two sentences run even partially concurrently with one another.

39.On considering totality, however, I will make them run partially concurrently. In determining the final sentence, I bear in mind the loss to the victim of Charge 1.

(Mr Lau, please stand)

40.On Charge 1, Mr Lau will go to prison for 2 years.

41.On Charge 2, Mr Lau will go to prison for 2 years.

42.I order that one year of the sentence on Charge 2 will run consecutively to the sentence on Charge 1. The aggregate sentence is therefore 3 years’ imprisonment.