HKSAR v. Lau Hak Kan

DCCC 159/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 159 OF 2015

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REASONS FOR SENTENCE

1.Lau Hak Kan you have pleaded guilty to one charge of burglary, contrary to section 11 of the Theft Ordinance, Chapter 210.

2.In summary in the early evening of the 9 January this year residential premises on the 21st floor of Lakeshore Building, No. 7 Tseng Choi Street in Tuen Mun were burgled.  The flat was ransacked.  A laptop; 436 Octopus cards; cash coupons and foreign currency were stolen. 

3.You were arrested the following day.  Under caution and in a subsequent interview you admitted at around 8 p.m. the day before you burgled the flat and stole the items particularised in the charge.  Unable to sell the laptop you dumped this in a rubbish bin together with the cash and foreign currency.  The Octopus cards were recovered from your home.

4.In passing sentence I have carefully considered everything said on your behalf by Mr Si together with your mitigation letter.  I take into account that since you were very young your hearing has been impaired and you have speech difficulties.

5.You are married and have two young children.  Due to your disability and that you have been a drug addict since you were 16 you have been unable to find regular employment since leaving school.  Since 2010 you have been unemployed and have relied on social welfare.

6.The correct starting point for a single burglary of residential premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years imprisonment. 

7.Lower starting points have been taken where the burglary is said to be opportunistic.  You told the police that you found the door to the flat was not locked therefore you walked inside to see if there was anything to steal.  In your mitigation letter you say you acted out of momentary greediness.

8.I do not regard the offence in the same light as where someone passes by an open door or vacant premises where food or items of little value are stolen (see for example HKSAR v Cheng To Ming [2006] 2 HKLRD 260 and HKSAR v Chau Man Ying CACC 439/2011). 

9.Whilst I have expressed my reservations as to the circumstances you came to burgle the flat I am satisfied that even if the door was open when you walked past this is not a ground to take a lower starting point. 

10.You have appeared in court on 20 occasions amassing a total of 21 convictions.  13 offences are for offences of dishonesty with six for burglary.  You last appeared in court in June 2013 when you were sentenced to 4 months and 4 weeks imprisonment for two offences of theft.  I am satisfied that you are properly to be regarded as a persistent offender.  

11.The last burglary was in 2009 when you were sentenced in DCCC 312/2009 to 2 years imprisonment.  I have read the reasons for sentence in that case.  By reason of your disabilities the judge did not enhance the starting point.  I also sympathise with you that as a result of your disability you may suffer more hardship whilst serving prison.  Having been sentenced to numerous prison sentences you are clearly aware of the consequences of your actions.  As the judge commented last time the courts cannot continue to indulge you on account of your disabilities by always passing a reduced sentence.   

12.I am satisfied the starting point is to be enhanced by 3 months to 3 years and 3 months imprisonment.  Giving you full credit for your plea of guilty reduces the sentence to 2 years and 2 months imprisonment. 

13.As an act of mercy I am prepared to reduce the sentence by reason of the fact that after you were arrested and remanded in custody your father was diagnosed with cancer and sadly passed away a few days ago. 

14.I reduce the sentence by 1 month.  You are convicted and sentenced to 2 years and 1 month imprisonment.