HKSAR v. Wang Bao

DCCC 266/2024

[2024] HKDC 1919

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 266 OF 2024

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REASONS FOR SENTENCE

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1.The defendant is convicted of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210, on his own plea and agreement to Amended Summary of Facts.

Facts

2.At around 1310 hours on 28 November 2023, PW1 was invited for a massage service for HK$200 when he was walking on the street.  He agreed and followed the unknown female into a subdivided flat (“the Premises”).  Upon entering the room, PW1 sat on the bed and the unknown female asked him to take off his trousers for massage.  He took off his trousers, placed them onto the headboard and placed his wallet on top of his trousers.  He then laid down on the bed faced upwards and closed his eyes whilst the unknown female massaged his head.  He saw the door to the room was left ajar.

3.Later, PW1 heard some knocking sounds outside the room and saw the defendant standing beside the headboard with PW1’s wallet in his left hand.  The defendant immediately put down the wallet back onto the headboard and they looked at each other for a few seconds.  Then, the defendant went to open the door.  PW1 immediately grabbed the defendant and said “don’t leave, you stole my wallet” whilst taking back the wallet.

4.The defendant managed to open the door while the landlord and the landlord’s agent were standing outside the door.  They helped to stop and subdue the defendant together with PW1.  The unknown female fled.  The case was reported.

5.Upon police arrival, the defendant was arrested.  Under caution, in the presence of an interpreter, he remained silent.  At the time of arrest, he had HK$8,000-odd cash on him.

6.The defendant took advantage of PW1 who was in a vulnerable state when he stole the wallet.  The wallet and its contents were recovered and there was no loss to PW1.

7.At all material times, the defendant and the unknown female were not tenants of the Premises.  The defendant entered the Premises as a trespasser, and he dishonestly appropriated the wallet with the intention of permanently depriving PW1 of the wallet and its contents.  The Premises concerned was a domestic premises and the defendant was a two-way permit holder.

Criminal record

8.The defendant has a clear record in Hong Kong.

Mitigation

9.The defendant is aged 39.  He was born in mainland and has received education up to Form 3 level.  He is divorced with two daughters aged 7 and 10.  At the time of offence, he was working as a construction site worker earning about ¥4,000 to ¥6,000 Renminbi per month. 

10.It is said that the defendant came to Hong Kong in November 2023.  Prior to the date of the offence, he was approached by an unknown female who offered him a massage service and as a result of which he followed her and received massage service at the offence location.  On the date of offence, he intended to revisit the unknown female for a massage service as he was impressed by her massage service.  When he arrived at the offence location, he noticed the door was left ajar and he took the opportunity to commit the present offence. 

11.It is said that the defendant foolishly committed the present offence out of greed.  He did it on the spur of the moment for quick money and he is extremely remorseful for his wrongdoing.  He undertakes not to reoffend and is willing to face the consequences.  He therefore decided to plead guilty at the earliest opportunity.

12.The defendant, in his letter of mitigation, expressed his deep remorse and stated that he now understands his wrongdoing is a serious offence, that the commission of the offence had landed his family in financial difficulties as he is the sole breadwinner of the family and he asks this court for leniency.

13.Defence counsel also referred this court to the cases of HKSAR v Ng Wai Hing [2003] 2 HKLRD 338, HKSAR v Suen Chi Wai [2015] 5 HKLRD 33 and HKSAR v Wasat Khan DCCC 625/2017.  It was submitted that despite the offence location was a subdivided flat located in a residential premises, it is essentially being used by an unknown woman as an unlicensed massage establishment at the material times.  It was said that the defendant’s entry into the offence location by the defendant was not premeditated, and that it did not involve the use of any tool, and that the present case did not involve extreme fright.

14.Defence counsel also referred this court to the cases of HKSAR v Sim Ka Wing CACC 450/2000, and HKSAR v Cheung To Ming [2006] 2 HKC 416. It was said that the present case is one similar to a sneak thief.  The defendant visited the location initially only for a massage and only took the opportunity when he noticed the door was left ajar.

15.Defence counsel submitted that the value of the items stolen is relatively small and that they were all recovered and PW1 suffered no loss.  It was also submitted that the defendant pleaded guilty at the earliest opportunity and he should be entitled to a full one-third sentencing discount.

Discussion

16.According to section 11(4)  of the Theft Ordinance, any person who commits burglary shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 14 years.

17.Before sentencing, the court has carefully considered all that was said on behalf of the defendant, the authorities cited and the mitigation letters lodged.

18.The Premises is part of a residential building but defence counsel submitted that as the same was being used by people to perform massage service for customers, the same should be considered non-residential premises and the sentencing guideline for non-domestic premises should apply in the present case.

19.To resolve this issue, the court would refer to the case cited by defence counsel, HKSAR v Ng Wai Hing, where the Court of Appeal in paragraph 28 and 29 of the judgment says:

“28. Burglary is a serious offence and burglary of domestic premises is even more serious as there is always the possibility of confrontation with the occupant who will be subject to extreme fright when a total stranger invades his privacy. The gravamen in burglary of domestic premises is the fear felt by victims that a thief should have invaded their own house. That is why it may be regarded as an aggravating factor in burglary of premises which are expected to be occupied.

29. It may not be too helpful to decide if a hotel room should be categorized as domestic or non-domestic for sentencing purpose. A hotel is in a category of its own. But the aggravating factor involved in burglary of domestic premises is certainly present in the case of burglary of a hotel room.”

20.From the photos of the Premises, the Premises is only a small room/cubicle and it is obvious that anyone entering the room would be immediately noticed by the occupants within the Premises at the time.  The victim, PW1, and the massage lady were there at the time when the defendant committed the offence.  They were only at a very short distance from each other.  The defendant chose in such circumstances to proceed to take the wallet from the headboard.  He has agreed that he entered the Premises without the consent of the occupants.

21.According to the agreed Summary of Facts, PW1 confronted the defendant, a total stranger to him when he had his trousers removed in the course of receiving the massage service.  He was therefore caught in a very vulnerable position.  Surely he must have experienced extreme fright at the time.  This is the same aggravating factor in burglary of premises which are expected to be occupied.  It is therefore not helpful at all to decide if the Premises is or is not a residential premises.

22.This court considers that the sentencing starting point of burglary for domestic premises, ie 3 years, should be adopted.

23.Defence counsel submitted that this is an opportunistic burglary.  This court would not accept such contention because the presence of these two people must be apparent to the defendant.  The decision by him to enter with such a knowledge of the people present and steal the wallet, the persons within the Premises would definitely be frightened.  In the least, PW1 would be frightened.  Further, it is not disputed that one needs a key to open the gate to the main entrance of the building within which the Premises are situated.

24.The defendant is a two-way permit holder.  This is not his first time to visit Hong Kong.  He came to Hong Kong two days before he committed the offence.  The time when he committed the offence and the time of arrival is not too proximate. This court therefore is not going to sentence him on the basis that he came to Hong Kong for the primary purpose of committing the offence.

25.The defendant has pleaded guilty and this is the most valid mitigating factor for which he is entitled to a full one-third sentencing discount.  He is therefore sentenced to 2 years’ imprisonment.