HKSAR v. Mok Hon Kau

DCCC 519/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 519 OF 2012

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Burglary". The burgled premises are an office situated at a commercial building.

Summary of Facts

2.About 12:30 pm on 22 March 2012, PC 10022 and his colleagues were patrolling in the vicinity of Emperor Group Centre, No.288 Hennessy Road, Wanchai.  They saw the defendant, who was wearing a cap and glasses with a black frame and carrying a rucksack, entering the lift of Emperor Group Centre.

3.About 10 minutes later, the defendant came out of the lift and left the building.  The Police stopped him for enquiries.  Upon search, a female wallet containing cash in the sums of HK$940 and RMB45, a Hong Kong Identity Card, a Home Visit Card, a driving licence, a resident card, 12 bank cards (all in the name of OUYANG Louisa Cao), an Octopus card and a face mask (surgical) were found in the defendant's rucksack.  A Samsung Galaxy smartphone was also found in the defendant's left front trouser pocket.  Under caution, the defendant admitted having burgled an office located at Room 804, 8^th Floor of the building. 

4.The Police located Ms. OUYANG Louisa Cao at the burgled office.  She identified the wallet and all the items contained therein as well as the smartphone as her personal properties. Ms. OUYANG stated that about 12:35 pm, she left her handbag, which contained her wallet and smartphone, on her desk and went out for lunch.  She had secured the glass door of the office with an electronic password lock before she left.  She returned to the office about 30 minutes later and found her wallet and smartphone missing from her handbag.  There were no signs of prizing open of any doors or ransacking in the office.

5.In his video recorded interview, the defendant claimed that he went to the 8^th Floor of the building to look for a job.  He entered Room 804 and no one was inside.  He saw the handbag and took the wallet and mobile phone away.  He was unable to tell the details of the alleged recruitment.  Ms. OUYANG confirmed that her company was not hiring at the material time.

Mitigation & Sentence

6.The defendant is now 41 and has 5 conviction records, involving a total of 8 "Burglary" offences.  His was last sentenced to prison in January 2011 and was released on 2 November 2011.

7.Defence counsel Ms. LAI informed me that the defendant was divorced in 2004.  He has custody of his daughter, who is now 17.  Prior to the present offence, the defendant also resided with his mother (aged 82).  The defendant's mother had a stroke in early February 2012 and became paraplegic.  She was discharged from the hospital on 22 February 2012 and was transferred to a nursing home.  A letter from the defendant and some supporting documents were placed before me; their contents are duly noted.

8.Ms. LAI submitted that at the time of the offence, the defendant was unable to find a job and had to pay for his mother's medical expenses and charges for the nursing home.  The defendant is very close to his mother; he committed the present offence out of momentary greed.  Ms. LAI stressed that the defendant is an opportunistic burglar.  He went to the building to look for a job after reading an advertisement in the newspaper.  As he walked by the office in question, he saw its door being half open and went in there to steal.[1] Ms. LAI cited HKSAR v YEUNG Kwok Sang CACC 4/2006, HKSAR v SIM Ka Wing CACC 450/2000 and香港特別行政區 訴 郭詠琴 CACC 394/2010 to support her proposition.

9.Time after time, the court has expressed in very clear terms that having a sick family member or being in financial difficulty (however serious) is no mitigating factor for committing a crime.

10.I do not accept that the present case is an opportunistic burglary.  I do not accept that the defendant went to the building to look for a job when he could not recall the details of the recruitment advertisement or even the address or name of the company which was hiring.[2]  Furthermore, if he genuinely intended to go for a job interview, he would not have gone there during lunch time.  In my view, the defendant purposely went to the building during lunch time (when most office workers were out to lunch) looking for opportunities to enter unmanned offices to steal.

11.The normal starting point for non-domestic burglary is 2.5 years' imprisonment.  I accept that no great force was used by the defendant to enter the office and no associated damage to properties was caused.  I am also aware that Madam OUYANG suffered no actual loss and no one in the office was alarmed by the defendant's entry or presence.  On the other hand, this is the 9^th offence of "Burglary" committed by the defendant.  He committed the present offence in less than 5 months after release from prison.  I have all the reasons to treat him as a repeated offender and raise the starting point as deterrence.

12.I adopt a starting point of 3 years' imprisonment.  A one-third discount is given for the guilty plea, reducing the sentence to 2 years.  Apart from this, I see no other mitigating factors which warrant any further discount.  The sentence I pass is 2 years' imprisonment.