HKSAR v. Lai Ka Fai

DCCC 469/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 469 OF 2014

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Reasons for Sentence

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Chargesand facts

1.The defendant pleads guilty to 2 charges of burglary which took place at the same location on 2 consecutive days. 

2.At 1000 h on 29 March 2014, a female employee returned to work in Full Luck Mahjong School in Yau Ma Tei.  She found 8 bottles of liquor on the shelf in the Accounting Room of the office gone missing.  Upon reviewing the CCTC footage in the office, she saw the defendant, who was a former employee, and a masked female enter the office earlier on the same morning.  The defendant took away the liquor from the shelf in the Accounting Room. 

3.The matter was reported to the police.  On 30 March 2014, the police intercepted the defendant on the street.  He was moving some cartons of goods.  Subsequent police investigation led to his admission of the 2^nd Charge offence.  He had used the same password obtained whilst an employee beforehand to open the office. He used a pair of scissors and a knife to prise open the glass window of the Accounting Room before entering to steal.  He sold the liquor for $1,450 and he had spent all of $1,050, his part of the proceeds shared with the female.  Part of the stock of liquor he sold was then recovered from the shop he identified to the police.   These facts constituted the 2^nd Charge. 

4.Further, he admitted that the cartons of goods he was caught with were 178 compact fluorescent bulbs stolen one day before the liquor from the office at the same location.  After entering the office with the same password, he used a card to open the lock of the storeroom of the office to steal the light bulbs.  These facts constituted the 1^st Charge.   

Mitigation

5.The defendant is aged 35, of F. 3 education level.  He last worked as a transportation worker and decoration worker.  He earned $12,000 per month, which failed to support his drug-habit on and off. He had 13 previous convictions, 3 among which were for theft some years ago and none for burglary. 

6.The prosecution and the defence agree that the defendant had resigned from the employment with effective effect on 5 March 2014. 

Sentencing considerations

7.In R v Wong Man [1993] 1 HKC 80, the Court of Appeal suggests 2 ½ years as the starting point for non-domestic premises for a first offender of full age.  In HKSAR v Sim Ka-wing CACC 450/2000, the Court of Appeal explains that the said starting point should be adjusted upwards where there are aggravating factors such as a high degree of planning. 

8.The prosecution draws my attention to the case of HKSAR v Chen Ting Fang CACC 221/2007.  The defendant there burgled a flat with keys to a flat on which he did renovation work for its owner earlier on.  The trial judge found the keys to have been stowed away by the defendant whilst doing the decoration work or alternatively picked up by him when the flat owner subsequently lost them.  Based on a breach of trust, the trial judge ordered a 3-month increase based on breach of trust.  This 3-month increase based on breach of trust was affirmed by the Court of Appeal.   

9.In HKSAR v Lau Kin Man CACC 173.2012, the defendant burgled a warehouse in which he formerly worked.  The Court of Appeal affirmed the starting point of 30 months and remarked that the sentence was generous for whilst the trial judge “alluded to fact that there were overtures of breach of trust in that [he] returned to [his] former workplace and used [his] knowledge of the arrangements”, the actual sentence was not increased.   

Sentencing this defendant

10.As the defendant entered to steal with a masked female under the 2^nd Charge, entry with an accomplice is in itself an aggravating factor.  I consider whether to make a further increase based on the reasoning for breach of trust in Chen Ting Fang (above). In my view, the trial judge only made it a finding that the keys might have been stowed away by the defendant without knowledge of the flat owner.  In this scenario this is no doubt a breach of trust.  But the trial judge actually made an alternative finding that the defendant might have only picked up the keys when the flat owner lost them.  That had nothing to do with his being retained for the renovation.  In that scenario, whilst it is a theft by finding, using the keys to enter to steal cannot be regarded as breach of trust.  It has to be another set of circumstances for consideration as to whether to increase the sentence for such theft by finding before burglary.       

11.Upon entry with the password, the defendant in our present case still had to use tools to prise in the premises.  In my view, whilst it qualifies as a breach of trust, the knowledge of the password, which happened not to have been changed by the employer upon his termination of employment, is not a breach of trust of major significance as the mischief can be readily eradicated by the employer.  Such minor breach of trust or, if one may more practically put it, convenience can only be regarded as part of the basic planning and conventional starting point canvassed by Sim Ka-wing (above).  In the premises, on top of the conventional starting point 30 months, I add 3 months due to the presence of a masked accomplice, not the use of the password.  I give him a one-third discount because of his plea of guilty.  The sentence is 22 months for the 2^nd Charge. 

12.I take 30 months as the starting point for the 1^st Charge.  I give him a one-third discount because of his plea of guilty.  The sentence is 20 months. 

13.The 2 charges relate to separate incidents and warrant consecutive sentences.  However, given the proximity in time, I order the sentences to be concurrent.  The overall sentence is 22 months.