HKSAR v. Lau Ka-man, Amy and Others

DCCC710/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 710 OF 2011

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Reasons for Sentence

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1.The 1st defendant pleaded guilty to four charges. The charges were of burglary.

2.In the 1st charge, the offence was committed on 2 December and it was a burglary at a premises in Pak Fung House on the Choi Wan Estate.  What was stolen from there were copper plates were stolen from the switch rooms between the 14th floor and 26th floor, and that offence was committed together with the 2nd defendant.  The 2nd defendant pleaded not guilty to that offence and was convicted after trial.   

3.The 2nd charge was an allegation of burglary. This was at a rooftop at Chi Chun Lau in Chun Seen Mei Chuen, Ma Tau Wai, on 4 January 2011.  That charge was laid against the 1st defendant and the 3rd defendant.  The 3rd defendant originally pleaded not guilty to that offence, but after the voir dire he changed his plea to one of guilty to a theft at those premises.  Again, the property in that offence was copper plating, but this was stolen from the roof of the premises and in my view theft was the appropriate charge in that case.    

4.The other two charges which the 1st defendant alone face, again charges of burglary, this time from the rooftop of a school premises, again copper plating involved, and again, in my view, these would more appropriately have been charged as theft.  There was no question of the school itself being entered; the theft was from the roof of the premises.   

5.The first offence was committed on 2 December 2010.  A security guard employed at Pak Fung House in Choi Wan Estate checked the premises at 7.30 in the morning.  Later that day, in the afternoon, a resident said that she saw somebody acting furtively in the building and the security guard went to find out what was going on.  She discovered that the switch rooms from the 14th to the 26th floor had been entered and the copper plating inside the switch rooms had been stolen.  These rooms had all been secured by a key.  There was one key for all the rooms.  The copper plating itself was later recovered from an electric room.  The fingerprints of the 2nd defendant were found inside one of the rooms, as was that of the 1st defendant.    

6.The second offence occurred on 4 January of this year, 2011, and the premises concerned were Chi Chun Lau on the Chun Seen Mei Chuen at Ma Tau Wai in Kowloon.  At 5.20 in the morning on 4 January, a resident on the 11th floor heard some noises coming from outside.  He left his flat for a check and saw a male pushing a trolley on which there were four nylon bags.  Meanwhile, a second male was hanging a nylon bag down from the rooftop. He also saw a female waiting on the 11th floor.  The culprits left and it was later found that some 600 metres of copper cladding had been stolen from the roof of the building.  The cost of replacing that was $100,000. 

7.The 1st defendant admitted the offence.  The 3rd defendant was identified as being involved and, when arrested, said that he had gone there and acted as a lookout. 

8.The third offence was on 20 January.  The premises concerned was the rooftop at Chi Mei Lau, Chun Seen Mei Chuen, Ma Tau Wai, Kowloon.  Again, it was copper plating stolen from the rooftop.  The 1st defendant admitted acting as a lookout and said she would get $1,000 as a reward.    

9.The fourth offence was committed on 13 November, the premises concerned was a primary school in Kowloon Tong, Bishop Walsh Catholic School, Inverness Road, Kowloon Tong.  Copper plates which were newly installed on the rooftop of the school, a total length of 200 meters valued at $40,000, were missing, and the defendant’s fingerprints were found on the 3rd floor staircase of the school. 

10.The 1st defendant admitted that she committed the offence for money. 

11.The 1st defendant has two previous convictions for dissimilar offences.  They are both drug-related offences, in 2003 and 2006. 

12.D2 has previous convictions:  1991 for arson; 2011 for possession of dangerous drugs. 

13.The 3rd defendant has 18 previous court appearances for a variety of offences.  Significantly, the only offences of dishonesty were recorded in March of this year, two in March of this year on the same day, and the only other matter concerning dishonesty was in 1971, many years ago.    

14.I am told that the 1st defendant is 25 and at the time of the offences she was living with her boyfriend, who is the 2nd defendant in this case.  She left school in the year 2000, having finished Form 2.  From a previous relationship, because of the influence of that boyfriend, she became a drug addict, and she has two daughters from that relationship, aged 8 and 4.  She left that boyfriend in 2006.  She then met and married a man and remained married to him for one year only.  She left him in 2007.  She had an income of $7,000-$8,000 per month from some employment, and that was supplemented by government funds.  Until then in 2009, she met the 2nd defendant and they cohabited together with the two daughters. 

15.In 2010, she discovered she was pregnant and she did not want to mention this to the 2nd defendant, and she wanted to raise money to have an abortion, and it was for that reason that she involved herself in these offences in order to raise money for that purpose.  However, she subsequently decided not to have an abortion and she now has a third child.          

16.All the children are under the care of the Social Welfare Department and the two elder children are with foster parents.   

17.The 2nd defendant I am told is aged 35 and he was educated to Form 3.  I am told that he was a drug addict but that is no longer the case.  He was cohabiting with the 1st defendant until he was remanded in custody.  Although the 2nd defendant pleaded not guilty to the charge, it was urged upon the court that it was a very limited defence and it was a very short trial, and I am asked to give him credit for that.       

18.The 3rd defendant is 58 years of age, born in Hong Kong to humble domestic background.  Because of the family finances, he had to leave school after completing Primary 6.  He has held many different jobs and his limited education has made him unable to earn sufficient funds to run a household.  He is divorced from his wife.  He has a son at university and a daughter who lives with his previous wife and works as a sales lady.  He has a cohabitee. He was invited by the 2nd defendant in the first place to join in this criminal enterprise in order to earn some money and he foolishly agreed, and he only received a small amount of money for acting as a lookout in connection with this offence.  In his case, I note that he changed his plea after the voir dire, and he is entitled to a discount for that.   

19.As burglaries go, one is tempted to say that these would be at the lower end of the scale save for two factors.  The first factor is that the copper plating which was stolen in each of these offences, when it is removed from the building, it places the residents of those buildings in danger and the fabric of the building in danger because these are lightning rods. Also, the cost of replacing these rods is quite substantial.  In case of the 2nd charge, the cost of replacing was $100,000, and this replacement has to be done as a matter of urgency because of safety factors.        

20.On the 1st charge, I propose to take a starting point of 2 years’ imprisonment.  In the case of the 1st defendant, I reduce that to 16 months to reflect her guilty plea, and in the case of the 2nd defendant, I reduce the sentence by 4 months to reflect the limited defence he submitted at trial.  

21.The 2nd charge I propose to treat as a theft charge and I take a starting point of 18 months.  On D1, the sentence will be 12 months, and on D3, having given credit for his late guilty plea, I sentence him to 14 months.

22.For Charges 3 and 4, I impose sentences of 12 months on D1.  I have to consider the question of totality.  D1 is sentenced to 16 months on the 1st charge.  I order that the sentences on all the three other charges run concurrently, and having heard all the mitigation, what I propose to do is order that two months of that run consecutive to the 1st charge, so she will go to prison for 18 months.  D2 will be imprisoned for 20 months and D3 for 14 months.    

Please refer to CACC441/2011 for the relevant appeal(s) to the Court of Appeal.

Please refer to CACC441/2011 for the relevant appeal(s) to the Court of Appeal.