HKSAR v. Lu Yongbing and Another

HCCC 255/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 255 OF 2014

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: There are four counts of burglary on the indictment, all contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. Lu Yongbing, D1, faced all four counts, while Liu Kei-wing, D2, faced only one count, that is the fourth count.

The particulars of the joint count, that is Count 4, against both defendants were that the two defendants, together with another person unknown, having entered as trespassers the premises of Union Classic Watch & Clock, at Kimberley Road, Tsim Sha Tsui, on 29 December 2013, stole therein 28 watches valued at $9,184,000.

D1 alone faced the other three counts, that is Count 1, 2 and 3. Regarding Count 1, the 1st defendant together with Chung Kin-wai, who had pleaded guilty earlier at the Magistracy Court and was committed to the Court of First Instance to be sentenced by me in case number HCCC 272/2014 and other persons unknown, having entered as trespassers the premises of the Oriental Watch Company at the Holiday Inn Golden Mile Shopping Mall on 16 August 2013, stole therein 246 watches valued at $6,560,000.

Regarding Count 2, D1 and another person unknown, having entered as trespassers the premises of San Wah Motors Company at San Lok Street, Sheung Shui, on 5 September 2013, stole therein cash of $49,000 and three gold rings valued at $5,000.

Regarding Count 3, D1, together with other persons unknown, having entered as trespassers the premises YC Boutique in Nathan Road, Yau Ma Tei, on 15 December 2013, stole therein seven watches, 64 handbags and 11 pieces of accessories valued at $4,607,500.

The admitted facts. I will deal with the joint count against both defendants first.

Count 4. At around 12.40 pm on 29 December 2013, both defendants and another unknown person were captured on the CCTV to be loitering near the Union Classic Watch & Clock Company. All three were wearing caps and facemasks. Shortly afterwards the unknown man used a hammer to smash the display windows of the shop and both defendants grabbed watches from the display shelves and put them in the bags they were carrying. Both defendants then fled and the shop staff gave chase. Both defendants were subdued, with the bags containing the stolen properties; that is the watches valued at over $9 million.

Both defendants were arrested for robbery. Under caution the 1st defendant admitted his involvement, but said he was not the mastermind. The 2nd defendant said nothing under caution.

At a subsequent video recorded interview the 1st defendant admitted that in Shenzhen a man called Lo Sam arranged for him to Hong Kong to do a job. He knew that a Hong Konger, that he thought was D2, would also take part and would arrange for hammers and bags. D1 came to Hong Kong as instructed on 28 December 2013 and met with Lo Sam and D2. He was given a cap, a mask and gloves and was told that when the goods were sold he would receive one-sixth of their value as a reward. Upon arrival, it was Lo Sam who had smashed the display window with a hammer. D1 and D2 stole the watches and placed them inside the bags. Both he and D2 were caught as they fled from the scene.

The facts regarding the 2nd count. Upon D1’s arrest, his fingerprint was found to match with that found on the inside of a glass door of a garage in Sheung Shui which had been entered and ransacked sometime between 4 and 5 September 2013. The lock of the roller shutter had been prised open. Cash of $49,000 and three gold rings valued at $5,000 had been stolen.

During a video recorded interview D1 admitted he took part in the burglary of the garage. He said he met a man in Shenzhen who had arranged to meet him in Sheung Shui to burgle the garage. The other man provided the tools for the burglary and the two of them entered the garage in the garage in the small hours of 5 September after prising open the lock of the roller shutter. They stole around $30,000 and split the profit.

The facts for Count 1. At around 6.23 am on 16 August 2013 the burglar alarm of the Oriental Watch Company rang. Security found that the glass main door and some of the glass display windows of the shop had been smashed and the premises had been ransacked. 246 Tudor watches valued at $6,560,000 had been stolen. DNA examination on bloodstains on the glass fragments at the scene showed that they came from three different persons, one of whom was the 1st defendant and the other one was from Chung Kin-wai.

The 1st defendant was questioned about this burglary. In a video recorded interview D1 admitted Lo Sam arranged for him to come to Hong Kong to commit this burglary. He came to Hong Kong alone around 5 am on the material day and was picked up by an unknown driver. Chung Kin-wai and another male were already on board the vehicle. D1 was given a cap, facemask and gloves. After arriving at the watch shop, the other male smashed the window while he and Chung stole the watches. They fled the scene and he later received a reward of $100,000 from Lo Sam.

D1 admitted having committed yet another burglary at the end of the interview. That leads to the admitted facts of Count 3.

D1 mentioned a burglary which took place at around 8.44 pm on 15 December 2013 at the YC Boutique. The owner of the boutique was informed that the burglar alarm in her shop was ringing when the shop was closed at the time. The proprietor saw through the CCTV channel installed in her mobile phone that the shop glass had been smashed. On arrival police found two hammers, two handheld lights, a screwdriver and seven gloves abandoned at the shop. Over $4 million worth of watches, handbags and accessories had been stolen.

D1 in a video recorded interview admitted it was Lo Sam who had contacted him in December 2013 and asked him to take part in a burglary. He agreed and came to Hong Kong alone. He met up with a driver and two other men. They went to the fashion shop to observe the surroundings. The same group went back there the next day. D1 and one other man went to the shop with hammers, gloves, handheld lights and bags. The other man prised open the lock. He and that man left. He later turned with two other men and one of the men smashed the display window with a hammer. D1 took part in stealing the handbags and watches. They all fled and D1 received his share of $60,000 from Lo Sam.

As far as D1 was concerned the events as he described during the video recorded interviews accord with the CCTV footages and D1’s movement record show that he was in Hong Kong at the material times.

I will now deal with the background and mitigation.

D1 is a Chinese citizen who had come to Hong Kong via a two-way permit. He is 25 years of age with no previous convictions in Hong Kong. In mitigation Mr Simon Ng, counsel for the 1st defendant, informed me that the defendant worked in a factory in the mainland earning RMB1,500 a month.

With reference to the six aggravating factors mentioned in the case of HKSAR v Cheng Wai Kwai CACC 338 & 339/2007, details of which I will refer to alter, Mr Ng accepts that as far as Counts 1, 3 and 4 are concerned, all but factor five are present. Factor five refers to the presence of previous convictions, in particular convictions of burglary. Mr Ng also accepts that for the same three counts another aggravating factor was the damage done to the premises, that is mentioned in a case of HKSAR v Fan Kit Hung [2009] 6 HKC 314, which again I will refer to later.

Mr Ng also refers me to the case of HKSAR v Gao Chuanglu CACC 25/2013 for my consideration. That case concerned three counts of burglary. The appellant and others stole sharks fins and other valuables in three premises. In two of the premises the burglars gained entry by digging a hole in the wall of the premises. The appellant was a professional and serial burglar. A starting point of 8 and a half years’ imprisonment for the burglary of watches, jewellery and cash totalling $22.75 million in Count 3 was held by the Court of Appeal as being at the high end of the range, but within the range of sentence appropriate to the charge. An overall sentence of 6 years, 8 months’ imprisonment upon plea was upheld.

Mr Ng submits that comparing the present case with that of the case of Gao, the heavy instrument used were not as sophisticated here. No hole was made in the wall, the properties involved were less in amount. Whilst accepting that it was another aggravating factor for D1 to come to Hong Kong to specifically commit the burglaries, Mr Ng urged me to consider the sentence passed in the case of Gao when considering the appropriate sentence here.

D2 is 37 years of age. He had four court appearances with 35 previous convictions. In 1993 he was convicted of one count of burglary. In 1994 he was convicted of two triad related offences. In 1996 he was convicted of 10 counts of trafficking in dangerous drugs. In 2010 he was convicted of one count of attempted burglary and one count of money laundering.

I think I might have miscalculated it. It may not be 35. Have you counted how many for your client, Mr Lam?

MR LAM: It’s 15. Actually, I counted 15 counts.

COURT: 15 altogether, because it can’t be 35.

MR LAM: 15.

COURT: 15, yes, 15 sorry. It’s a typo, it should be 1-5, I typed 3-5 instead. So I’ll say it again.

D2 had four court appearances with 15 previous convictions: One burglary in 1993; two triad related offences in 1994; 10 counts of trafficking in dangerous drugs in 1996; one count of attempted burglary and one count of money laundering in 2010.

D2 studied up to Form 2 and worked as a part time decoration worker. He is single and lived with his mother, two younger brothers and a four year old son prior to his arrest. Mr Nelson Lam, counsel for the 2nd defendant informs me that the defendant’s family members, including his four year old son are in court today. Mr Lam submits that being deprived of close contact with his young son is an additional punishment for D2, who should be given full credit for pleading guilty after being advised as to the seriousness of the offence and the likely lengthy sentence.

Mr Lam accepts that the burglary was well planned and heavy instrument is used and that damage was done to the premises. Mr Lam stresses that D2 is not the mastermind. Despite what D1 has said under caution, D2 denied that he was the one who had arranged for the hammer. There was no evidence that he was a professional burglar, though he had two similar convictions before. For the offence, the 2nd defendant obtained $60,000 as his reward.

Now the sentence. A person convicted of the offence of burglary on indictment is liable to be sentenced to 14 years’ imprisonment. In the case HKSAR v Cheng Wai Kwai CACC 338 & 339/2007, Yeung JA, as he then was, said:

“The proper starting point for sentence in a case of burglary of non-domestic premises is 30 months’ imprisonment (see R v Wong Man, unreported, CACC 372/1992). The starting point can be adjusted upwards if there are aggravating circumstances such as; (1) the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment; (2) the offence is committed by two or more people; (3) the offence targets at substantial premises and involves substantial properties; (4) the offender is a professional burglar and not just an opportunist; (5) the offender has previous convictions, particularly previous conviction of similar nature, and (6) the offender commits multiple offences.”

In the case HKSAR v Fan Kit Hung, the Court of Appeal, after referring to the above six aggravating factors added that:

“Where substantial damage is done to the victimised premises, or to things in it, in the course of the burglary, then that also will be an aggravating factor.”

I will deal with D1’s case first. D1 is involved in four burglaries spanning a period of just over 6 months. D1 was clearly a professional burglar who came to Hong Kong to commit these offences, which was already an aggravating factor. Of the four burglaries two involved watch companies, that is Count 1 and Count 4; one involved a company selling both watches and handbags, that is Count 3; while one involved a garage, that is Count 2.

Counts 1, 3, 4 all involved D1 acting with others, targeted substantial shops involving very substantial properties. Over 6 million in Count 1; over 4 million in Count 3; and over 9 million in Count 4. All these burglaries were well planned and executed. Heavy instruments in the form of heavy duty hammers were used to smash the glass display windows to get to the property, causing substantial damage to the premises in these three counts. Save in the case of Count 4, none of the properties were recovered.

Four Counts 1, 3 and 4, the circumstances were so serious that the starting point has to be much higher than that of the 30 months which was the usual sentence for the burglary of commercial premises without any aggravating features. After considering all the circumstances of the offences and the aggravating factors I have already identified, I am of the view that the proper sentence after trial for these three counts would have been as follows: Count 1, 5 and a half years; Count 3, 4 and a half years; Count 4, 6 years.

In the case of the burglary of the garage in Count 2, it would appear that this burglary was not as serious as the other three. The garage in question would not be a substantial premises and one would not have expected properties of great value stored inside a garage. Damage to the roller shutter is not as serious as using hammers to smash the glass display windows. For this count, the aggravating factors was that D1 was a professional burglar who came to Hong Kong to burgle this place with others. Further, this burglary was one of a series of burglaries D1 had committed in about 6 months’ time. For the burglary in Count 2 I will adopt the usual starting point of 30 months and adjust the sentence upwards to take into account the fact that D1 was a professional burglar and this burglary was one of a series of four committed within a period of about six months and that D1 acted in concert with others. A proper sentence after trial would have been one of 3 years.

D1 pleaded guilty before me and I will give him the full one-third discount for all four counts. So the sentences after the one-third discount would be: Count 1, 44 months; that equals to 3 years 8 months; Count 2, 2 years; Count 3, 3 years; and Count 4, 4 years.

Now, it would appear that D1 voluntarily owned up his involvement in Count 3 when there was no direct evidence to link him to that offence. I will give him a further discount of 2 months in relation to Count 3.

So the resulting sentence would be: Count 1, 44 months; Count 2, 2 years; Count 3, 2 years; Count 3, 2 years and 10 months; and Count 4, 4 years, that is 48 months.

There are no other grounds to further reduce the sentences. I now have to consider the totality. I am of the view that a notional starting point of 8 and a half years is appropriate for all four counts. With such a notional starting point and giving D1 the usual one-third discount, plus the two extra months for admitting his involvement in Count 3 in the absence of direct evidence against him, the total sentence is one of 66 months, that equals to 5 and a half years.

To achieve this end, the sentences will be as follows: Count 1, 44 months’ imprisonment; Count 2, 2 years’ imprisonment; Count 3, 2 years 10 months’ imprisonment; Count 4, 4 years’ imprisonment. Counts 1, 2 and 3 to run concurrently. 22 months of the 48 months, that is the 4 years imposed on Count 4, to run consecutively to the concurrent sentence of 44 months imposed on Counts 1, 2 and 3, making a total of 66 months.

In the case of D2, he was involved in a burglary of watches worth over $9 million in Count 4. The aggravating factors as far as D2 is concerned was that he had one previous conviction of burglary and one of attempted burglary amount the 15 convictions starting from 1993. On this occasion he, together with others, took part in a well planned and executed burglary targeted at a substantial watch shop. A heavy duty hammer was used to smash the glass display windows, causing substantial damage to the premises.

Although D2 had previous convictions of burglary, bearing in mind that one was back in 1993 and the last one was in 2010, I do not think that there is evidence to show that D2 was a professional burglary when he was guilty of one count of burglary on this occasion. I accept that he is not a mastermind and I will not on the 1st defendant’s allegation that the 2nd defendant was the person who had arranged for the hammer. Having said that, the roles played by D1 and D2 during the actual burglary cannot really be distinguished. The properties involved were very substantial, over $9 million, but I do note that all the watches were recovered.

Having considered all the circumstances of this offence and the defendant’s background, I am of a view that a proper sentence after trial would have been one of 5 and a half years.

The defendant had pleaded guilty before me and I will give him the full one-third discount. Though prison life will be harder for him this time, as he will not be able to have close contact with his young son, that is not something I can take into account to further reduce the sentence for this serious offence.

For the fourth count the 2nd defendant is sentenced to 44 months’ imprisonment, which equals to 3 years 8 months’ imprisonment.