HKSAR v. Lee Ho Wing

DCCC 639/2023

[2023] HKDC 1838

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 639 OF 2023

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REASONS FOR SENTENCE

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1.The 3^rd defendant (D3)  is convicted of a charge of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210, on his own plea and agreement to the amended Summary of Facts.

Facts

2.An ambush operation was mounted at Workshop No. 209, Kin Sang Estate Commercial Centre, Kin Sang Estate, Tuen Mun, New Territories (“the Playhouse”)  on 19 October 2022.

3.In the small hours of 19 October 2022, the person-in-charge of the Playhouse (PW1)  received notification from the CCTV system that someone had entered the Playhouse. He immediately checked the relevant CCTV footages and found that D3 and two others had entered the Playhouse via the emergency exit at around 4:06 am on the same day.  They approached and searched the cashier.  PW1 then informed the police accordingly.

4.At around 4:08 am on the same day, D3 and two others were intercepted by police at the cashier inside the Playhouse. 

5.At the material time, D3 and two others entered as trespassers part of a building known as the Playhouse with intent to steal therein. 

Criminal Record

6.D3 has a clear record. 

Mitigation

7.D3 was aged 22 at the time of the offence and is now aged 23.  He used to work as a warehouse assistant and was earning around $12,000 per month.  His parents were divorced and he lives with his father before his arrest. 

8.Defence counsel handed in mitigation letters from D3’s parents.  It was said that the cancer of D3’s father has recently recurred and he is in urgent need of D3’s care.  D3’s mother confirmed the same and she also added that D3 is now deeply remorseful.  She also stressed that as D3 is the only son, his father is in urgent need of D3’s care. 

9.Defence counsel submitted that D3 is a first offender and he pleaded guilty at the first available opportunity, he is therefore entitled to full one-third sentencing discount.  He also added that this is a one-off incident and the chance of reoffending by D3 is low.

10.It is said that D3 was highly cooperative with police after arrest. Defence counsel submitted that there is no evidence of preplanning by D3, nor was there any element of violence or forcible entry into premises involved in the commission of the offence.  There is also no financial loss as a result.

11.Defence counsel conceded that the tariff for the non-domestic burglary is 2 years and 6 months’ imprisonment for a first offender.[1] He submitted that there is no aggravating feature in the present case.  He also submitted that with the usual remission policy for good behavior in prison, D3 has effectively served a sentence equivalent to a starting point of about 31.5 months, which is over and above the tariff of 30 months for non-domestic burglary.

12.He urged this court to consider imposing a sentence that will allow D3’s immediate release.  He also referred this court to the case of HKSAR v Law Wai Kon, DCCC 646/2008.

Discussion

13.Before sentencing, this court has carefully considered all that was said on behalf of D3 as well as the mitigation letters submitted.

14.As conceded by defence counsel, it is well established that the appropriate sentencing starting point for burglary of non-domestic premises in the absence of aggravating or extremely strong mitigating factors is 2½ years’ imprisonment.[2]

15.This court finds that there is an absence of sophistication or serious planning in the commission of the present offence.  As submitted by defence counsel, there was no forcible entry, no use of equipment necessary for the gaining of access to the subject premises, no violence has been used or expected as the incident occurred in early hours and there was no loss to burgled premises.

16.For this reason, the court is prepared to adopt a lower sentencing starting point of 28 months’ imprisonment.  However, in this case D3 has acted together with two others.  This amounts to an aggravating feature in sentencing and the starting point is enhanced by 3 months.

17.D3 has pleaded guilty and is entitled to full one-third sentencing discount.  He is therefore sentenced to 20 months and 20 days’ imprisonment.

18.It is said that D3 has been in custody up to this date for 429 days but following the interpretation and approach taken by the Court of Appeal in the case cited by the defence counsel, namely, Fu Man Kit v Superintendent of Tai Lam Correctional Institution [2022] 1 HKLRD 219, the actual term that D3 is to serve well exceeded 31 days and rule 69(1)  of Prison Rules, Cap 234A, must operate.

19.D3 has a good character but it is well established by authorities that a good character element has already been subsumed in the one-third sentencing discount.  Accordingly, D3 is sentenced to 20 months and 20 days in this case.