HKSAR v. Lo Tsz Ho, Vincent

DCCC 826/2024

[2024] HKDC 1965

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 826 OF 2024

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REASONS FOR SENTENCE

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1.Mr Lo pleaded guilty before me to the following 5 charges.

2.Charge 1 is Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.  Particulars are that he, on 9 March 2024, in Hong Kong, having entered as a trespasser part of a building known as “Kung Fu Tea”, Shop No 105, Queens Hill Shopping Centre, Queens Hill Estate, No 68 Lung Ma Road, Fanling, New Territories, stole therein 5 cheques.

3.Charges 2 to 5 are Theft, contrary to section 9 of the Theft Ordinance, Cap 210.  Particulars are that he, on 9 March 2024, in Hong Kong, stole a chose in action, namely a debt in sum of X Hong Kong currency owed by Bank of China (Hong Kong)  Limited in account numbered 012-735-20302981 to Kung Fu Tea (Queens Hill Estate), property belonging to another.

4.For Charge 2, X = $2,660.  For Charge 3, X = $1,100.  For Charge 4, X = $2,385.  For Charge 5, X = $2,060.

Facts admitted by Mr Lo

5.“Kung Fu Tea”, Shop No 105, Queens Hill Shopping Centre, Fanling, was a tea shop (“the Shop”)  serving take-away drinks and food.  The Shop opened daily between 11 am and 9 pm.  There were two doors to the Shop one of which, the side-door, had been out-of-order and therefore could not be locked.

6.On 9 March 2024, at 11 am, Ms Chan, the person in charge of the Shop, returned to open the place for business.

7.At 4 pm the same day, Ms Chan found 5 cheques missing from a rack in the storage area of the Shop.  The 5 cheques were already signed and had names of the intended recipients and payable amounts already filled in.

8.The 5 cheques (all bearer cheques)  were drawn on a current account held with the Bank of China (Hong Kong)  Limited (“BOC”)  numbered 012-735-20302981 by Kung Fu Tea (Queens Hill Estate).  None of the 5 cheques was crossed.

9.The amounts written on the 5 cheques were respectively $2,660, $1,100, $2,385, $2,060 and $621.

10.CCTVs captured the following video images between 4:59 am and 5:02 am on 9 March 2024: a Chinese male wearing a face mask slided open the side-door and sneaked into the Shop; he ransacked the rack and took something away; he left through the side-door.

11.On 13 March 2024, police conducted investigation by viewing the relevant part of the CCTV footage.  At 9:53 pm, whilst in the vicinity of the Shop, PC 10893 saw Mr Lo and found him to resemble the Chinese male suspected of having burgled the Shop.  He intercepted Mr Lo for enquiry.

12.Under caution, Mr Lo stated:-

(a)  On 9 March 2024, at 4 am odd, he sneaked into the Shop to steal;

(b)  He stole 5 cheques from the Shop;

(c)  He cashed 2 of the cheques in the amounts of $2,660 and $2,385 on the same day at a BOC branch on Fung Cheung Road, Yuen Long;

(d)  He cashed 2 of the remaining cheques in the amounts of $2,060 and $1,200 (sic)  at a BOC branch on Hong Lok Road, Yuen Long;

(e)  He threw away the last cheque in the amount of $621 because he thought the amount was too small; and

(f)  He had taken photos of the stolen cheques with his mobile phone and he was willing to show them to the police.

13.Mr Lo was arrested.  Under further caution, he said he acted out of greed and he asked for a chance.  Police found and seized $1,700 cash from Mr Lo.

14.During a subsequent cautioned VRI, Mr Lo maintained his previous admissions.  He further stated the following:-

(a)  He had spent part of the cashed-in amount on food and drink;

(b)  The $1,700 cash seized from him was what was left;

(c)  When he was doing laundry in a laundromat next to the Shop, he noticed that the sliding door of the food joint could be opened; and

(d)  Out of greed, he went inside to see if there was anything valuable in the Shop.

Criminal record

15.Mr Lo has 4 previous convictions of theft or attempted theft, therefore all similar.

Antecedents

16.Mr Lo is aged 29 (28 at the time of the offences), educated to F6 level, was a bus driver at the time of arrest.  Mr Lo is single, and was living with his retired parents and one sibling in public housing in Fanling.

Mitigation

17.Mr Edward Chan of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Lo.  The following is a summary of the mitigation submissions.

18.Mr Lo has previously been a salesman in a jewellery shop.  However, in 2018/2019, he started to take drugs under the influence of undesirable peers. He lost his job and his self-control.  He was convicted of theft of some non-expensive items in July 2020 and was fined.  He was convicted of theft again in August 2021 of washing liquid from a launderette and he was sentenced to DATC.

19.After Mr Lo was released from DATC, he remained unemployed until he found a job as a bus driver in 2023.  By the time of arrest for this case, he had worked as such for about 10 months, earning about $20,000 per month.

20.Regarding the index offences, on 8 March, Mr Lo finished his work shift late and was not scheduled to work the following day.  He consumed several cans of beer and was walking down the street in the early hours of 9 March (day of offence)  when he noticed the door of a herbal tea shop was closed but unlocked.  Under the influence of alcohol and driven by greed, he wandered inside and came across the five cheques in question.  He stole them.

21.Next morning, he cashed four of the cheques at two different branches of BOC, successfully obtaining cash.  In the process, he presented his HKID card which was an incredibly foolish thing to do.

22.It is Mr Lo’s case that he wandered into the premises in question upon noticing an unlocked door.  It is argued that an unlocked door still characterizes the burglary as opportunistic in nature.

23.On Charge 1 of burglary, it was submitted that the usual starting point for sentence in respect of non-domestic premises is 30 months.

24.However, the court in appropriate cases can adopt a lower starting point if the burglary is an “opportunistic” one that takes advantage of an open or unlocked door: HKSAR v Cheung To Ming, CACC 406/2005; HKSAR v Ho Kwok Cheong, DCCC 1019/2016; HKSAR v Law Tak (transliteration), DCCC 1153/2021 (Reasons for Sentence in Chinese).

25.On Charges 2 to 5 of theft, it was submitted that the charges pertained to 4 cheques stolen by Mr Lo during the burglary, the subject matter of Charge 1.  The total amount was $8,205.  Upon enquiry by the court, Mr Chan accepted that by cashing the 4 cheques at the bank, Mr Lo has done something more than just participating in a burglary.

26.Mr Chan referred to three cases mainly for comparison purpose, namely, HKSAR v Leung Sai Man, DCCC 1161/2011, HKSAR v Chiu Wing Lok, CACC 142/1998, and HKSAR v Cheng Cheuk Ping, DCCC 541/2019.

27.Mr Chan submitted that whatever sentences are given for Charges 2 to 5, they should run concurrently among themselves and with the sentence on Charge 1.

28.For Mr Lo’s previous similar records, Mr Chan urged the court not to enhance the sentence or at least not to enhance to the extent of 3 months, on the basis that Mr Lo is not a cunning or inherently malevolent person.

29.Mr Chan submitted on behalf of Mr Lo one mitigation letter written in Chinese by Mr Lo himself.  The contents are generally that Mr Lo was affected by alcohol and there was no premeditation or planning before the commission of the offence; that he has reflected upon the matter and he will not re-offend. Mr Lo asked for a chance for reform and asked for a lenient sentence so he may return home and to society at an earlier time.

Sentence

30.This is a simple case of burglary of non-domestic premises where signed cheques have been stolen.  The gravamen of Charges 2 to 5 is not the fact that those cheques have been stolen; but rather, subsequently, 4 of the stolen 5 cheques were cashed at bank.  This is an additional activity for which the offender must pay in terms of penalty.

31.For the reason that the cited cases were for comparison purpose, I found them to be of limited assistance.

32.For Charge 1, I accept that the burglary was of an opportunistic type. As such, I shall adopt a lower starting point of 2 years’ imprisonment.

33.For Charges 2 to 5 of theft, because of the relatively low amounts of the choses in action, I shall adopt a starting point of 8 months’ imprisonment for each.

34.The bad criminal record of Mr Lo is an aggravating factor not only for the theft charges, but also for the burglary charge herein.  As a result, his starting point for Charge 1 is increased by 3 months; and his starting points for Charges 2 to 5 are enhanced by one month each.

35.Mr Lo pleaded guilty to all charges in good time.  He shall be entitled to the customary 1/3 sentencing discount.  There is nothing that I can see in the mitigation that will earn him any further reduction in sentence.

36.As said, although the theft offences may themselves be grouped under one activity, that activity is something additional to the burglary offence.  I shall not be able to order wholly concurrent sentences as between the thefts on the one hand and the burglary on the other.  However, in passing the final sentence, I will bear in mind the principle of totality as applied to Mr Lo.

(Mr Lo, please stand)

37.On Charge 1, the sentence is 18 months’ imprisonment.

38.On each of Charges 2 to 5, the sentence is 6 months’ imprisonment.

39.I order that the sentences on Charges 2 to 5 are to run concurrently among themselves as Group A sentence.

40.I further order that 4 months of Group A sentence is to run consecutively to the sentence on Charge 1, making a final sentence of 22 months’ imprisonment for Mr Lo.

	( Isaac Tam )
	District Judge