HKSAR v. Lau Kwok Wah

DCCC 1126/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1126 OF 2010

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Reasons for Sentence

1.The Defendant had pleaded to one count of burglary, contrary to Section 11(1)(a) and (4) of the Theft Ordinance, Cap. 210.

2.Facts admitted by the Defendant disclose that the owner of the Chung Kiu Medicine Co. at Shop A, Ground floor, Bo Fung Building, Nos. 32-34 Haiphong Road, Tsim Sha Tsui switched on the anti-theft alarm system of the shop ad closed and locked the roller shutter before he left the premises at about 11:30 p.m. on 11^th August, 2010. At around 4:16 a.m. on 12^th August, 2010, the alarm system of the shop went off. PC 58824 arrived at the shop at 4:27 a.m. to make inquiries. On arrival, he saw that the roller shutter of the premises was rising. The Defendant and 2 other Chinese males dashed out from the shop and fled, and were chased by police officers. The Defendant was finally caught and subdued. The other males got away. The Defendant was arrested and cautioned. The Defendant said that 2 friends had brought him to the shop to burgle it. A crowbar and a pair of pliers had been left inside the shop by his 2 friends. Upon checking, it was found that the lock of the roller shutter had been damaged, and the bottom bar and padlock were missing. Nothing had been stolen but a bottle of Chinese caterpillar fungus had been moved from the display rack to the display table. Two screwdrivers, two hydraulic clamps, a pair of pliers, a crowbar and some nylon bags were found inside the shop. A CCTV recording of the shop shows that 4 persons entered the shop at 4:17 a.m. on 12^th August, 2010. In a subsequent video interview under caution, the Defendant said that he had met one of the men in Shenzhen 6 months ago. On 11^th August, 2010, the two of them met up with 2 other males and it was suggested to burgle the shop – the Defendant agreed to carry the stolen property away from the burgled shop.

3.The Defendant is aged 44 years and has attained education up to Form 5. He came to Hong Kong from China in 1990. He is married and his wife is a housewife. They have a 5 years old son. The Defendant lives with his family in Shenzhen. He was unemployed at the time of the offence. He used to be a decoration worker, but as a result of a back injury in 2008, he could no longer work and received CSSA of $2,900 each month. His mother is in her 80’s and wheelchair bound and lives in an old aged home in Hong Kong. The Defendant had come to Hong Kong to visit her at the material time, when he was asked to join in the planned burglary. Because of his poor financial situation and out of stupidity and greed, he agreed to participate. He is the sole provider for his family, and obviously, his being imprisoned will be difficult for his family. The Defendant is not a man of clear record – he has 3 previous convictions, the last in 2006, but nothing similar.

4.Upon his arrest, the Defendant made a full confession to the police. I accept that he was not the master-mind here, but clearly, he knew what he was participating in. It was a planned burglary. Save for his plea, there is really little mitigation of weight before me.

5.The proper starting point in a case of burglary of non- domestic premises in the absence of aggravating or mitigating factors for an adult offender of clear record is 2 years and 6 months’ imprisonment: R v Wong Man [1993] 1 HKC 80 and Secretary for Justice v Tsang Hon-yin AR 5/2004. I can see no reason to depart from this.

6.Having considered all that had been urged upon me, in my view the appropriate starting point is one of 2½ years’ imprisonment. He is entitled to the usual one-third discount for his plea. He is sentenced to 20 months’ imprisonment.