HKSAR v. Lee Kai Wing

DCCC 423/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 423 OF 2014

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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. Particulars of the charge are that the defendant on 6 March, 2014 having entered as a trespasser the domestic premises of room D, mezzanine floor, Ling Nam Building, nos.5-9 Cheung Ning Street, To Kwa Wan, stole therein 6 mobile phones and one laptop computer.

Facts

2.PW1 Ms. Cheuk resided at the burgled premises. PW2 Mr. Leung Pui Hang Chilli would stay at the premises occasionally. The defendant, PW1 and PW2 knew each other and the defendant had visited the premises a few times before the day of the offence.

3.PW1 and PW2 locked the door of the premises and left at around 12:45 am on 6^th March. Upon their return about 1 hour and 15 minutes later at around 2 am, they found 6 mobile phones and 1 laptop computer missing. The phones were in a drawer in the kitchen while the computer was in a bag beside the television. There was no sign of ransacking. The matter was reported to the Police.

4.Police officers arrived at the premises at around 3:20 am. One of the officers, PC13030, recalled intercepting the defendant earlier at around 1:04 am the same night and the defendant had with him 5 mobile phones and 1 laptop computer. The defendant was then located at his residence.

5.The defendant was arrested and cautioned and the defendant admitted to entering the premises with 2 keys and stealing the phones and computer he found inside. In the subsequent cautioned video recorded interview, the defendant admitted that he had taken the keys from the premises a few days before the day of the offence to unlock and enter the premises.

6.PW1 identified the 2 keys as the backup keys that had been missing for about a week. She confirmed that she had not lent the keys or the phones or the computer to the defendant.

7.The 6 stolen mobile phones and computer had a total value of $23,500. All the stolen property, apart from one of the phones worth $1,500, had been recovered from the defendant’s residence.

Previous convictions

8.The defendant has appeared in court 5 times and has 3 convictions, with 2 being for theft and one for attempted burglary. His last conviction was in December 2012 when he was sentenced for the attempted burglary to 150 hours of Community Service. The defendant was eventually in breach of the Community Service Order and was brought back to the District Court and sentenced to 8 months’ imprisonment.

Mitigation

9.The defendant is 31 years old, married for 2 years. He had separated with his wife for a short while but they reunited. The wife is now 6 months pregnant, suffers from minor psychiatric illness and needs the care and attention of the defendant.

10.It is Mr. Suen’s submission that this case is more in the nature of theft. There was no ransacking of the place, the property stolen were not of high value and almost all of them will be returned to the owner. After the defendant’s arrest and caution, he immediately accepted his responsibility, and he made a full confession in his video recorded interview.

11.The defendant’s conviction record is not appalling. The defendant pleaded guilty and showed his remorse. In the defendant’s last conviction for attempted burglary, the defendant did enter the premises, without breaking in, but was stopped by the watchman before he could steal anything. The defendant was not able to provide more information as to why he was dealt with so leniently on the previous occasion.

Guideline sentence

12.The maximum sentence for burglary is that of 14 years’ imprisonment. It is trite law that, subject to any mitigating or aggravating factors, burglary of a domestic premises would attract a sentence of 3 years’ imprisonment for a first offender[1]. There is no dispute that the premises in the present case is a domestic premises.

Sentence

13.The defendant managed to time his entry and stole during the 1 hour 15 minutes that PW1 and PW2 were away from the premises. More precisely, PW1 and PW2 left the premises at 12:45 am and the defendant was stopped by PC13030 at 1:04 am, implying that the defendant must have burgled the premises in that short window of time of just around 20 minutes, suggesting that the defendant knew exactly when the premises would be empty and that he had planned the burglary.

14.The keys the defendant used to gain entry to the premises were taken a few days before the burglary, indicating premeditation.

15.The value of the property stolen was around $23,500, with the actual loss suffered being $1,500 since all but one of the phones were recovered. As Mr. Suen rightly pointed out, the loss was relatively minor. Be that as it may, the main culpability of the defendant lies in his planned action of gaining entry by stealing the keys and entering when his friends had left the premises to steal, and must be punished accordingly.

16.Having heard the defendant’s mitigation, given the circumstances of the burglary, given the relatively minor loss suffered and balancing that with the defendant’s previous convictions, I find that there is no reason to depart from the sentencing guidelines. I adopt a starting point of 3 years’ imprisonment, discounting it by one third in recognition of the defendant’s guilty plea, and sentence the defendant to 2 years’ imprisonment.