HKSAR v. Lam Kwok Wah

DCCC 258/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 258 OF 2011

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Reasons For Sentence

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Charges and facts

1.The defendant pleads guilty to burglary of (to be precise, entering to steal from) a market which sold fresh food (Charge 1) and possession of Part I Poison (Charge 2).

2.Lucky Market in Wong Tai Sin housed different stalls selling fresh food.  Its iron gate had been controlled by a switch inside a locked metal box beside the gate.  Since early February 2011 the lock had remained broken.

3.At 4:00 a.m. on 5 February 2011, a watchman of the market saw the Defendant pushing a trolley inside the market.  The market was supposed to be closed until business hours.  The police were summoned.  At 4:46 a.m, the police found the Defendant trying to open the iron gate of the market near a stall (“Stall A”).  He had a plastic bag and a trolley.  He had burgled Stall A and another stall 10 metres away (“Stall B”). 

4.His plastic bag contained the following items:

(a) 1 pair of pliers;

(b) 2 pairs of gloves;

(c) 1 torch;

(d) 3 screwdrivers;

(e) 1 cutter.

5.His trolley contained 1 CCTV camera (valued at $300) from Stall B, apart from the following items (valued at $7,800 in total) from Stall A:

(a) 1 box of broccoli;

(b) 1 fax machine;

(c) 1 electronic induction cooker;

(d) 1 video monitor;

(e) 1 video recorder;

(f) 3 CCTV cameras.

6.His jacket pocket contained a packet of 13 zopiclone tablets, which was a Part I Poison.  

Personal background and mitigation put forward

7.He is 40 years old, F. 3 level.  He was a junk collector at the time of arrest.  He lives with his aged mother.  He burgled the stalls out of greed. He took zopiclone to ease his insomnia.   

8.He has 11 previous convictions for theft, the latest in 2011 and 4 previous convictions for possession of Part I Poison, the latest in 2008.  His solicitor accepts he is a recidivist of both offences.

9.He is now serving a sentence of 3 months for theft in KCCC 732/2011. His solicitor tells me there is no application to make it concurrent with our present sentences. 

Sentencing principles

10.In R v Wong Man [1993] 1 HKC 80, the Court of Appeal regarded the proper starting point for non-domestic premises to be 2 ½ years.

11.In HKSAR v Sim Ka-wing CACC 450/2000, Keith JA, explained the conventional starting point for burglary:

“9. The conventional starting-point of 2 ½ years' imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point.”

12.Possession of Part I Poison is not under any sentencing guidelines.

Sentencing this Defendant

13.The Defendant’s sentences have to be aggravated by his recidivism.  I take an enhanced starting point of 3 years for Charge 1.  The plea of guilty is the only mitigating factor.  The sentence is reduced to 2 years. 

14.I take an enhanced starting point of 3 months for Charge 2.  I reduce it to 2 months due to the plea of guilty. 

15.By totality, both sentences shall be concurrent but consecutive to the sentence he has been serving before today.