HKSAR v. Kwok Tak Man

DCCC 707/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 707 OF 2013

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Reasons for Sentence

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1.The defendant pleaded guilty to five charges of non‑residential burglary. The facts he admitted can be summarised as follows.

Charge 1

2.At around 12.50 pm on 31 May 2012, the defendant entered an unattended decoration materials shop known as Melos situated at Lockhart Road, Wan Chai, and stole an iPhone valued at $5,000 left unattended at the reception of the shop.

Charge 2

3.At around 1.30 pm on 13 June 2012, the defendant entered a decoration shop known as Living Plus Co situated at Hennessy Road, Wan Chai.  He stole a Smartphone valued at $4,200, unattended at the reception of the shop.

Charge 3

4.At around 11.30 am on 3 May 2013, Mr Yuk Sang-hyun was giving a lecture in one of the classrooms of a tutorial centre known as T&B Education, situated at 3rd Floor, Honest Motors Building, Leighton Road, Causeway Bay.  He placed his Smartphone on the desk in the classroom at around 11.58 am.  He left the tutorial centre without closing its main door.  At around 11.55 am, when he returned to the tutorial centre, he found his Smartphone missing.  He could not tell the value of his phone.

Charge 4

5.In the morning of 29 May 2013, Miss Ng Karl‑cin, Cindy, returned to a tutorial centre known as St Jomary Tutorial Centre situated at 5th Floor, Parkview Commercial Building, Shelter Street, Causeway Bay, for work.  At around 12.25 pm, Miss Ng left her mobile phone, valued at $5,500, unattended on her desk and went out to toilet. She did not secure the door of the tutorial centre.  Later, when she returned to the tutorial centre, she found her phone missing.  The CCTV record on the 6th Floor of Parkview Commercial Building captured that at around 12.19 pm the defendant tried to enter a premises on the 6th Floor but in vain, as the door of the premises was then locked.  He then left.

Charge 5

6.At around 10 am on 13 June 2013, Miss Kwan Fung‑kuen, Ada, returned to her piano school known as Yan’s Music, situated at 1st Floor, Smiling Shau Kei Wan Plaza, Shau Kei Wan Road, and placed her Smartphone, valued at $4,000, unattended on a bookshelf in the shop.  She then went to one of the rooms of the shop for practising piano without securing the main door of the shop.  In the meantime, the police were conducting a covert surveillance operation putting the defendant under surveillance when he left home in North Point. At around 1.55 pm, the defendant, wearing a face mask, entered Smiling Shau Kei Wan Plaza.  Around 10 minutes later he left the said plaza and removed his face mask while walking.

7.A police officer intercepted him and found one Smartphone in his right hand.  The defendant refused to disclose the source of that Smartphone.  Subsequent investigation revealed that the Smartphone found on the defendant belonged to Miss Kwan, who identified the Smartphone as her missing property.

8.The defendant was then arrested.  Under caution, he claimed that he did not commit burglary; he simply stole a mobile phone from the piano school.  CCTV records of the plaza captured that at around 1.58 pm the defendant, wearing a face mask, tried to enter a shop near the entrance of the plaza, but in vain, as the door of the shop was then locked.

9.Subsequent video-recorded interviews were conducted with the defendant in respect of Charges 1 to 4.  Under caution, he denied the offences for Charges 1 and 2, but admitted the offences for Charges 3 and 4.

Background and Mitigation

10.The defendant is aged 38, single, living with his 60‑year‑old mother.  He was unemployed at the time of the offences.  His personal background is unremarkable.

11.He has a criminal record for 10 previous convictions involving 7 convictions for 10 charges of theft and two convictions for burglary.  He was last discharged from prison in February this year.

12.In mitigation, Mr Li, solicitor for the defendant, submitted that this series of burglary offences did not involve any sophistication.  No equipment was used in the commission of the offences.  No damage was caused.  Nobody was subjected to fear.  Mr Li described the offence as being committed in a “hit and run” manner.  It was submitted that the value of the stolen property was not high.

13.Accepting that the usual starting point for non‑domestic burglary being 2½ years, Mr Li asked the court to take into account the principle of totality.

14.In response to the court’s indication that the defendant might be regarded as a persistent offender, Mr Li asked this court to give the defendant the last chance, as he only has two previous convictions for burglary.  Mr Li referred this court to two cases, R v Tang Ping CACC93/1988 and HKSAR v Hai Chung Po CACC115/2013.  Relying on the former case, Mr Li said the Court of Appeal only increased 6 months from the starting point of 2½ years for two other burglaries “taken into consideration”.  In the latter case, Mr Li submitted that the defendant in that case was only treated as a persistent offender when he had 20 previous criminal convictions, nine of which were for burglary and eight for other offences of dishonesty.

15.In the present case, the defendant has only two out of 10 convictions for burglary.  He asked the court not to enhance the starting point.

Reasons for Consideration

16.A proper starting point for a single burglary of non‑domestic premises when there are no aggravating or mitigating features is 2½ years’ imprisonment.  When a defendant has committed more than one burglary at different times, a higher sentence is appropriate.  See AG v Lui Kam Chi [1993] 1 HKC 215.

17.The defendant committed the offences in Charge 1 and Charge 2 in May and June respectively in 2012.  Charges 3 to 5 were committed at different times in May and June this year.  The offences were separate and distinct.  The offences were committed in daytime when the premises were unsecured and unattended.

18.Mr Li did not ask this court, quite properly, in my view, to treat the cases as opportunistic burglaries.  He however described the manner of the defendant committing the offences as “hit and run”.  That description is appropriate in the sense that the defendant committed the offences in a swift manner.  He managed to steal the mobile phones of the victims as soon as they left their phones unattended.  He must have paid attention to his preys for some time, waiting for his chance to commit the offences.

19.This pattern of the commission of the offences clearly shows that the defendant was not just an opportunist, but a professional burglar.  He targeted mobile phones which contained personal data.  The phones were of not inconsiderable value and could easily be resold. The personal data could be improperly used.

20.The initial starting point for each of the offences should be 2½ years’ imprisonment.  As a general principle, a defendant should not be punished for previous offences for which he has received punishment.  However, an enhanced sentence may be imposed on a persistent offender to protect the interest of the public.  See HKSAR v Chan Pui Chi [1999] 2 HLRD 830.

21.The defendant’s criminal record is appalling, though not as bad as the applicant in Hai Chung Po, the case cited by Mr Li.

22.From March 2000 to November 2012, the defendant committed dishonest offences involving 13 charges, out of which two were burglaries.  He is a persistent offender.  Apparently the sentence passed in November 2010 for burglary could not deter the defendant from committing further offences.  It should also be noted that Charges 3 and 4 were committed only three months after the defendant had been discharged from prison in February this year.

23.To protect the interests of the public and to deter the defendant from committing further similar offences, I would apply the principle in Chan Pui Chi.  However, given that the initial starting point of 2½ years is not a low one for a daytime non-domestic burglary when no tools were used, I will only enhance each offence by 3 months.

24.The only mitigating factor in this case is the defendant’s plea of guilty, for which he will get one‑third reduction of his sentence.

25.The last question is totality.  The case cited by Mr Li for totality issue was decided in 1988, and more recent authorities for sentencing multiple burglaries could have been referred to this court, including HKSAR v Chuk Kwok Fung CACC332/2011.  In that case, the Court of Appeal had considered the sentences in four other multiple burglary cases.

26.The relevant factors for the overall total starting point would include the number of burglaries, the period in which the offences were committed, the value of the stolen property, and whether they have been recovered.

27.In this case, the defendant is a professional burglar as well as a persistent offender.  He has committed offences of dishonesty and burglary over the last 13 years.  In the present case, five separate and distinct burglaries were committed over a period of 12 months. The defendant targeted mobile phones which were valuables with high resale value.  The victims lost their personal data and had to run the risk of their personal data being improperly used.  Only one mobile phone was recovered.

28.I will adopt 5 years’ imprisonment as an overall starting point.  To achieve this overall sentence, the defendant is sentenced as follows:

Charge 1: 22 months’ imprisonment;

Charge 2: 22 months’ imprisonment, out of which 18 months to run consecutively to the sentence in Charge 1, the rest to run concurrently;

Charges 3, 4 and 5: each 22 months’ imprisonment, all to run concurrently with each other and concurrently with the overall sentence of Charges 1 and 2.

29.The total term of imprisonment is therefore 3 years and 4 months.