HKSAR v. Lo Kam Fai

DCCC 956/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 956 OF 2010

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one charge of Burglary, contrary to s 11(1)(b) and (4) of the Theft Ordinance, Cap 210, and to one charge of Failing to surrender to custody without reasonable cause, contrary to s 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221.

Facts

2.The premises the subject of the 1^st charge is a hut at no 2 Shing Mun Sheung Village in Tsuen Wan.  The hut was left unoccupied after its owner had emigrated to New Zealand in 2001.  However, there were still furniture and fittings inside which included, according to the Summary of Facts, a bed, pillows and quilt, a sofa, ceiling lights and air-conditioners.  Photographs of the interior of this hut contained in a photo album which has been submitted to the court put it beyond doubt that the hut was fully furnished and fitted out as a dwelling.

3.Mr and Mrs Lau King Sing (“the Lau couple”) had been entrusted to look after the hut in the owner’s absence.

4.On 17 September 2009, the Lau couple, finding that the locks of the iron gate of this hut had been changed, engaged a locksmith to have the locks repaired.

5.On 20 September 2009, a team of police officers, having stopped the defendant at the entrance to the hut, entered the hut with the defendant and found a female sitting on the sofa with the ceiling lights and the air-conditioner on.  The police also found a screwdriver, a pair of pliers, an electric drill, and 2 damaged locks on the table near the doorway.

6.Under caution upon his arrest, the defendant claimed that the hut had been let to him by one Mrs Lee.  However, he was unable to produce any tenancy agreement or the means of contacting Mrs. Lee.

7.The Lau couple confirmed that they did not know the defendant, and that 3 bottles of wine kept inside the hut and valued at HK$300 had been consumed.

8.The defendant was subsequently charged with burglary and his trial for this offence was originally set down for 17 February 2011.  However, the defendant absconded and failed to attend his trial on that day.  He was re-arrested on 27 June 2014.

9.In a cautioned interview in relation to the 2^nd charge, the defendant claimed that as he had been too busy with his work, he had forgotten to attend court for his trial in 2011.

Defendant’s background

10.The defendant is 38 years old.  He was educated to form 3 level.  He is not married, but is co-habiting with a woman.

11.He has been convicted on 13 occasions previously resulting in 39 criminal convictions over a span of 15 years stretching from 1990 to 2005.  While none of these previous convictions are similar in nature to the charges he is now facing, he has 9 convictions for offences involving dishonesty.

Mitigation

12.The defendant’s counsel Miss Diana Cheung admitted that looking at her client’s record, one can see that the defendant has not been leading a law-abiding life.  However, since his last conviction in 2005, he decided to turn over a new leaf and to earn a living by proper means through operation of a motor car service company, and then through working for various companies which were engaged in engineering projects.  One of these projects involved working under-water, which resulted in the defendant having 2 bullae, or bubbles, in his lungs which, according to his counsel, caused him shortness of breath.  Despite such condition, the defendant still strived to get himself gainfully employed.

13.His counsel said that the defendant committed the burglary out of momentary greed.  He absconded from his trial for that offence out of fear arising from his perception of the allegedly high rate of conviction for trials in the District Court.  He realised that it was wrong of him to have committed this burglary and then to have absconded from his trial for that offence.  With that realization, the defendant has been punishing himself for the past 3 ½ years and he has resorted to drinking to dull his sense of guilt.

14.The mitigation letters written by the defendant himself, by his cohabitee Miss Wong, by Miss Wong’s two daughters jointly, and by the defendant’s mother, speak of the defendant as a reformed man since his last conviction in 2005, trying to keep himself straight by making money through legitimate means.  They all ask for leniency from the court in dealing with the defendant.

15.In her mitigation, Miss Cheung asked the court not to sentence the defendant on the 1^st charge on the basis of it being a burglary of domestic premises.  She pointed out that the hut was not meant by the relevant government authority or regulations to be used as a dwelling.  In support of her contention, Miss Cheung produced certain print-out materials from the website of the Agriculture, Fisheries and Conservation Department and said that the hut was meant to be a storage shed for farm tools.

16.However, looking at those photographs showing the interior of this hut, Miss Cheung conceded that the hut was capable of being used as a dwelling.

Reasons for Sentence

17.With regard to the 1^st charge, as far as one can tell from the photographs, this hut had a living room, a kitchen, and 2 rooms, one of which was clearly a bedroom; these photographs also show that this hut was partitioned, decorated, furnished and fitted out as a dwelling.

18.That this hut may have been unoccupied for a certain duration up to the material time, or that this hut may not have been meant by the relevant government authority or regulation to be used as a dwelling, would not turn this hut, which had clearly been decorated and furnished as a residence, into non-domestic premises.

19.Miss Cheung relied on the authority of HKSAR v Lee Chiu Yui CACC 24/2014 for the proposition that burglary of a vacant residential building merits a starting point which is lower than that customarily applied to burglary of domestic premises.

20.However, Lee Chiu Yui and the cases cited in that judgment are concerned with vacated residential buildings awaiting demolition or re-development, and the theft of low-valued property which had seemingly been left behind by former occupants when they moved out.  These features are markedly different from those present in our case.

21.The hut in question, albeit unoccupied at the material time, had clearly not been vacated and left derelict by its owner.  Apart from its furnishings and fittings, the condition of the hut, as revealed by the photographs, was such that it was ready for human habitation at any time.

22.This court is firmly of the view that the hut should be regarded as domestic premises, and that the usual starting point of 3 years imprisonment for burglary of domestic premises should be applied with respect to the 1^st charge.

23.Apart from his plea of guilty, there are no other mitigating factors.  His personal circumstances and his present state of health are not such that any reduction in sentence ought to be given for them.

24.Even for his guilty plea to the burglary charge, the defendant should not be given the usual one-third discount from the starting point.

25.By his absconding, the defendant rendered the administration of justice more costly and time-consuming.  Moreover, his present plea to the burglary charge is anything but a timely plea: see HKSAR v Lam Kin-chung CACC 27/2007.

26.The court note that the defendant had been on the run for over 3 years before he was arrested again on 27 June 2014.  It is also noted that despite his realisation, as his counsel told the court, that he had done wrong in burglarizing the hut and then running away from his trial for that offence, the defendant had made no attempts to surrender himself to the police or to court.

27.His failure to come forward voluntarily indicates a reluctance on his part to accept responsibility for what he had done and to facilitate the course of justice: see HKSAR v Ko Chun Hung CACC 71/2007.

28.Given all the circumstances, this court would be prepared to reduce the defendant’s sentence by 8 months from the starting point of 3 years for his present plea of guilty to the burglary.  This represents a discount of about 22 percent.  I would therefore impose a sentence of 28 months imprisonment on the defendant for the 1^st charge of burglary.

29.As for the 2^nd charge, I would adopt a starting point of 6 months imprisonment.  Reducing it by one-third for the defendant’s guilty plea, I would impose a sentence of 4 months imprisonment for the 2^nd charge.

30.As the 1^st charge and the 2^nd charge are distinct and separate offences, I would order that the sentence for the 2^nd charge is to run consecutively to the sentence for the 1^st charge.  The total sentence is one of 32 months imprisonment in respect of both charges.

Compensation

31.The court would make an order under s 73 of the Criminal Procedure Ordinance, Cap 221 that the defendant is to pay HK$2,000 to Mr. Lau Chi Sing as compensation for loss and damage suffered by Mr Lau.