A A
B B
DCCC 90/2022
[2022] HKDC 1193
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 90 OF 2022 E
F F
------------------------------
G G
HKSAR
H
v H
HAU Pak-kwan
I I
------------------------------
J J
Before: HH Judge Kathie Cheung
K K
Date: 20 October 2022
L Present: Mr. Tsoi Shun Cheong, Counsel on fiat, for HKSAR L
Mr. Lam Shun Chiu, instructed by Messrs. C. O. Yu & Co.,
M M
Solicitors LLP, assigned by the Director of Legal Aid for the
N defendant N
Offences: [1] Burglary(入屋犯法罪)
O O
[2] Possession of an offensive weapon or instrument fits for
P unlawful purposes (管有攻擊性武器或適合作非法用途的 P
Q
工具) Q
R R
---------------------------------------
S REASONS FOR SENTENCE S
---------------------------------------
T T
U U
V V
A A
B B
1. The defendant pleaded guilty to one count of “Burglary”,
C contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap. 210 (first C
charge) and one count of possession of an offensive weapon or instrument
D D
fits for unlawful purposes, contrary to section 17 of the Summary Offences
E Ordinance, Cap. 228 (second charge). E
F F
Facts
G G
H
2. At around 2:08 p.m. on 15 October 2021, Mr. Sin Chi Tak, a H
security guard of Eaton Hong Kong at No. 380 Nathan Road, Kowloon
I I
(“the Hotel”), spotted the defendant in the CCTV whilst the defendant was
J walking up from B4/F to B3/F along the staircase in the Hotel. Mr. Sin J
thus reported the matter to other colleagues.
K K
3. At around 2:15 p.m. on the same day, Mr. Lo Wing Cheung,
L L
the security manager of the Hotel, intercepted the defendant near a lift on
M B3/F. Mr. Lo asked the defendant why he was there but he did not answer. M
As the defendant was holding a black jacket, Mr. Lo asked him where he
N N
got it from. The defendant replied that he got the jacket from a used clothes
O collection point nearby and then put the jacket back to the collection point. O
Mr. Sin and other security guards arrived. Since it was confirmed that the
P P
defendant was not a staff of the Hotel, a report was made to the police.
Q Q
4. Whilst waiting for the police, the defendant kept requesting
R R
Mr. Sin to let him go. At around 2:47 p.m., the defendant suddenly took
S out a fruit knife (16 cm in length, including a blade of 7 cm) ("the Knife") S
from the front pocket of his trousers with his right hand. The blade of the
T T
U U
2
V V
A A
B B
Knife was wrapped with paper. Mr. Sin immediately took the Knife away
C from the defendant. C
D 5. At around 3:30 p.m., the police arrived and arrested the D
defendant.
E E
6. CCTV of the Hotel captured the defendant entering the Hotel
F F
through the staff entrance at around 1:52 p.m. on 15 October 2021. He was
G G
seen entering different rooms on B3/F and B4/F, including the male
H
changing room, the sales and marketing office and the telecommunication H
room. He also tried to open the door of another room but failed. He was
I I
seen peeping through the glass panels on the doors into the security room
J and various offices. Then, he was seen picking up a black jacket from used J
clothes collection point. The CCTV also captured the incident when the
K K
defendant was intercepted by Mr. Lo on B3/F and subsequently escorted
L to the corridor of the general store area on B3/F to wait for the police. L
M 7. At the material times: M
N N
(a) the defendant entered the Hotel as a trespasser, with intent
O to steal therein (first charge); and O
P P
(b) the defendant had in his possession an offensive weapon
Q or instrument fits for unlawful purposes, namely the Knife, Q
with intent to use the same for any unlawful purpose (second
R R
charge).
S S
Mitigation
T T
U U
3
V V
A A
B B
8. The defendant is aged 38. He was unemployed prior to the
C arrest. He has not contacted his parents or other family members for a long C
time. He has 48 criminal conviction records, 22 of which relate to offences
D D
involving dishonesty.
E E
9. In mitigation, it was submitted that the defendant was a drug
F abuser and had taken some midazolam before commission of the offences. F
He bought the knife in question and that was why the knife was wrapped
G G
in paper sheath. He brought it along as a potential instrument connected
H with his intention to steal. Subsequently, when he was confronted by the H
staff of the hotel, he took out the knife with intent to hand it over.
I I
J 10. When questioned by this Court, Mr. Lam for the defence J
accepted that there was confrontation with staff of the Hotel in this case
K K
and the Court’s observation that the possibility of confronting staff of the
L Hotel is an aggravating feature. L
M 11. Given the defendant’s guilty plea and remorse, this Court was M
urged to deal with him as lenient as possible.
N N
O
Sentence O
P 12. The subject matter of the burglary (i.e. first charge) is a hotel. P
In HKSAR v Ng Wai Hing, CACC 621/2002, when dealing with burglary
Q Q
of a hotel room, the Court of Appeal said:
R R
“28. Burglary is a serious offence and burglary of domestic
S S
premises is even more serious as there is always the possibility
of confrontation with the occupant who will be subject to
T extreme fright when a total stranger invades his privacy. The T
gravamen in burglary of domestic premises is the fear felt by
U U
4
V V
A A
B victims that a thief should have invaded their own house. That B
is why it may be regarded as an aggravating factor in burglary
C of premises which are expected to be occupied. C
29. It may not be too helpful to decide if a hotel room should be
D categorized as domestic or non-domestic for sentencing D
purpose. A hotel is in a category of its own. But the aggravating
factor involved in burglary of domestic premises is certainly
E E
present in the case of burglary of a hotel room.
…
F 31. We are of the view that burglary of a hotel room should at F
least attract the same sentence as that for domestic premises.
G …” G
H H
13. In the present case, the defendant entered the Hotel and
I I
entered several rooms with intent to steal. Apparently those rooms were
J used for office purposes, not for hotel accommodation. Given there was J
the possibility of confrontation with the hotel staff when entering those
K K
rooms, I consider this to be an aggravating feature. In the circumstances,
L I consider the appropriate starting point to be 2 years and 9 months’ L
imprisonment.
M M
N 14. The defendant has 22 previous conviction records relating to N
offences involving dishonesty. He is regarded as a repeated offender. For
O O
this factor, the starting point of the first charge should be enhanced by 3
P months to 3 years’ imprisonment. Apart from the defendant’s guilty plea, P
there is no other mitigating factor. Given the defendant’s plea, the sentence
Q Q
for the first charge is reduced to 2 years’ imprisonment.
R R
15. For the second charge, I consider the appropriate starting
S S
point should be 9 months’ imprisonment. Given the defendant’s plea, the
T sentence is reduced to 6 months’ imprisonment. T
U U
5
V V
A A
B B
16. Having considered the totality principle and the fact that the
C defendant brought along a knife was part and partial of the burglary, the C
sentence of the second charge should run concurrently with that for the first
D D
charge. Therefore, the total sentence imposed on the defendant is 2 years’
E imprisonment. E
F F
G G
H H
I I
( Kathie Cheung )
J District Judge J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
6
V V
A A
B B
DCCC 90/2022
[2022] HKDC 1193
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 90 OF 2022 E
F F
------------------------------
G G
HKSAR
H
v H
HAU Pak-kwan
I I
------------------------------
J J
Before: HH Judge Kathie Cheung
K K
Date: 20 October 2022
L Present: Mr. Tsoi Shun Cheong, Counsel on fiat, for HKSAR L
Mr. Lam Shun Chiu, instructed by Messrs. C. O. Yu & Co.,
M M
Solicitors LLP, assigned by the Director of Legal Aid for the
N defendant N
Offences: [1] Burglary(入屋犯法罪)
O O
[2] Possession of an offensive weapon or instrument fits for
P unlawful purposes (管有攻擊性武器或適合作非法用途的 P
Q
工具) Q
R R
---------------------------------------
S REASONS FOR SENTENCE S
---------------------------------------
T T
U U
V V
A A
B B
1. The defendant pleaded guilty to one count of “Burglary”,
C contrary to section 11(1)(a) and (4) of the Theft Ordinance, Cap. 210 (first C
charge) and one count of possession of an offensive weapon or instrument
D D
fits for unlawful purposes, contrary to section 17 of the Summary Offences
E Ordinance, Cap. 228 (second charge). E
F F
Facts
G G
H
2. At around 2:08 p.m. on 15 October 2021, Mr. Sin Chi Tak, a H
security guard of Eaton Hong Kong at No. 380 Nathan Road, Kowloon
I I
(“the Hotel”), spotted the defendant in the CCTV whilst the defendant was
J walking up from B4/F to B3/F along the staircase in the Hotel. Mr. Sin J
thus reported the matter to other colleagues.
K K
3. At around 2:15 p.m. on the same day, Mr. Lo Wing Cheung,
L L
the security manager of the Hotel, intercepted the defendant near a lift on
M B3/F. Mr. Lo asked the defendant why he was there but he did not answer. M
As the defendant was holding a black jacket, Mr. Lo asked him where he
N N
got it from. The defendant replied that he got the jacket from a used clothes
O collection point nearby and then put the jacket back to the collection point. O
Mr. Sin and other security guards arrived. Since it was confirmed that the
P P
defendant was not a staff of the Hotel, a report was made to the police.
Q Q
4. Whilst waiting for the police, the defendant kept requesting
R R
Mr. Sin to let him go. At around 2:47 p.m., the defendant suddenly took
S out a fruit knife (16 cm in length, including a blade of 7 cm) ("the Knife") S
from the front pocket of his trousers with his right hand. The blade of the
T T
U U
2
V V
A A
B B
Knife was wrapped with paper. Mr. Sin immediately took the Knife away
C from the defendant. C
D 5. At around 3:30 p.m., the police arrived and arrested the D
defendant.
E E
6. CCTV of the Hotel captured the defendant entering the Hotel
F F
through the staff entrance at around 1:52 p.m. on 15 October 2021. He was
G G
seen entering different rooms on B3/F and B4/F, including the male
H
changing room, the sales and marketing office and the telecommunication H
room. He also tried to open the door of another room but failed. He was
I I
seen peeping through the glass panels on the doors into the security room
J and various offices. Then, he was seen picking up a black jacket from used J
clothes collection point. The CCTV also captured the incident when the
K K
defendant was intercepted by Mr. Lo on B3/F and subsequently escorted
L to the corridor of the general store area on B3/F to wait for the police. L
M 7. At the material times: M
N N
(a) the defendant entered the Hotel as a trespasser, with intent
O to steal therein (first charge); and O
P P
(b) the defendant had in his possession an offensive weapon
Q or instrument fits for unlawful purposes, namely the Knife, Q
with intent to use the same for any unlawful purpose (second
R R
charge).
S S
Mitigation
T T
U U
3
V V
A A
B B
8. The defendant is aged 38. He was unemployed prior to the
C arrest. He has not contacted his parents or other family members for a long C
time. He has 48 criminal conviction records, 22 of which relate to offences
D D
involving dishonesty.
E E
9. In mitigation, it was submitted that the defendant was a drug
F abuser and had taken some midazolam before commission of the offences. F
He bought the knife in question and that was why the knife was wrapped
G G
in paper sheath. He brought it along as a potential instrument connected
H with his intention to steal. Subsequently, when he was confronted by the H
staff of the hotel, he took out the knife with intent to hand it over.
I I
J 10. When questioned by this Court, Mr. Lam for the defence J
accepted that there was confrontation with staff of the Hotel in this case
K K
and the Court’s observation that the possibility of confronting staff of the
L Hotel is an aggravating feature. L
M 11. Given the defendant’s guilty plea and remorse, this Court was M
urged to deal with him as lenient as possible.
N N
O
Sentence O
P 12. The subject matter of the burglary (i.e. first charge) is a hotel. P
In HKSAR v Ng Wai Hing, CACC 621/2002, when dealing with burglary
Q Q
of a hotel room, the Court of Appeal said:
R R
“28. Burglary is a serious offence and burglary of domestic
S S
premises is even more serious as there is always the possibility
of confrontation with the occupant who will be subject to
T extreme fright when a total stranger invades his privacy. The T
gravamen in burglary of domestic premises is the fear felt by
U U
4
V V
A A
B victims that a thief should have invaded their own house. That B
is why it may be regarded as an aggravating factor in burglary
C of premises which are expected to be occupied. C
29. It may not be too helpful to decide if a hotel room should be
D categorized as domestic or non-domestic for sentencing D
purpose. A hotel is in a category of its own. But the aggravating
factor involved in burglary of domestic premises is certainly
E E
present in the case of burglary of a hotel room.
…
F 31. We are of the view that burglary of a hotel room should at F
least attract the same sentence as that for domestic premises.
G …” G
H H
13. In the present case, the defendant entered the Hotel and
I I
entered several rooms with intent to steal. Apparently those rooms were
J used for office purposes, not for hotel accommodation. Given there was J
the possibility of confrontation with the hotel staff when entering those
K K
rooms, I consider this to be an aggravating feature. In the circumstances,
L I consider the appropriate starting point to be 2 years and 9 months’ L
imprisonment.
M M
N 14. The defendant has 22 previous conviction records relating to N
offences involving dishonesty. He is regarded as a repeated offender. For
O O
this factor, the starting point of the first charge should be enhanced by 3
P months to 3 years’ imprisonment. Apart from the defendant’s guilty plea, P
there is no other mitigating factor. Given the defendant’s plea, the sentence
Q Q
for the first charge is reduced to 2 years’ imprisonment.
R R
15. For the second charge, I consider the appropriate starting
S S
point should be 9 months’ imprisonment. Given the defendant’s plea, the
T sentence is reduced to 6 months’ imprisonment. T
U U
5
V V
A A
B B
16. Having considered the totality principle and the fact that the
C defendant brought along a knife was part and partial of the burglary, the C
sentence of the second charge should run concurrently with that for the first
D D
charge. Therefore, the total sentence imposed on the defendant is 2 years’
E imprisonment. E
F F
G G
H H
I I
( Kathie Cheung )
J District Judge J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
6
V V