區域法院（刑事）Deputy District Judge M Chow10/1/2023[2023] HKDC 53
DCCC179/2022
A A
B B
DCCC 179/2022
C [2023] HKDC 53 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 179 OF 2022
F F
G ---------------------------------- G
HKSAR
H H
v
I LAW MAN KIN I
----------------------------------
J J
K Before: Deputy District Judge M Chow in Court K
Date: 11 January 2023
L L
Present: Mr Chan Kay K W, counsel-on-fiat, for HKSAR/Director of
M Public Prosecution M
Mr Wong James L W, instructed by V Hau & Chow,
N N
assigned by the Director of Legal Aid, for the defendant
O Offence: [1] Burglary（入屋犯法罪） O
P
[2] Possession of offensive weapon in a public place（在公 P
眾地方管有攻擊性武器）
Q Q
R ----------------------------------------- R
REASONS FOR SENTENCE
S S
-----------------------------------------
T T
U U
V V
-2-
A A
B B
1. The defendant pleads guilty to two charges, namely:-
C C
(a) Charge one: Burglary;
D D
E (b) Charge two: Possession of offensive weapon in a public E
place, contrary to S.33(1) and (2) of the Public Order
F F
Ordinance, Cap 245.
G G
Summary of facts
H H
I 2. On 16 November 2021 at around 11 am, PW1 found I
ransacking signs inside the staff room of “2 café” restaurant and saw the
J J
defendant fiddle with a pile of clothes outside the restaurant.
K K
3. When confronted by PW1, the defendant did not respond to
L L
PW1’s questions.
M M
4. When PW1 took out his mobile phone, the defendant
N N
immediately picked up a pair of scissors and quickly left the scene.
O O
5. PW1 followed the defendant into Mongkok MTR station.
P P
However, he lost sight of the defendant on the platform of Kowloon Tong
Q MTR station. Q
R R
6. PW1 reported case to the police.
S S
7. On the same day, at about 12:50 pm, the police found the
T T
defendant inside a toilet in the Kowloon Tong MTR station.
U U
V V
-3-
A A
B B
C 8. The following items were found in the basin inside the toilet:- C
D D
(a) A pair of scissors and
E E
(b) the stolen properties belonged to PW2, PW3 and PW4.
F F
G 9. The defendant was arrested for burglary and possession of G
offensive weapon. Under caution, the defendant said that “he stole things
H H
to sell since he had no money and that at the time outside the restaurant,
I he was afraid after he had stolen things, so he had the pair of scissors with I
him for self-protection.”
J J
K 10. In a video recorded of interview, the defendant stated that:- K
L L
(a) He went inside the restaurant through the rear entrance
M to use the toilet. M
N N
(b) The door was not locked at that time.
O O
(c) He saw some clothes, he wanted to get change as his
P P
clothes were wet.
Q Q
(d) He carried a pair of scissors to protect himself because
R R
his father bore grudges with many other people.
S S
(e) He bought the pair of scissors a day earlier.
T T
U U
V V
-4-
A A
B B
11. The stolen properties belonged to various staff of the
C restaurant include the following:- C
D D
(a) One wallet, an ATM card, a credit card, a pair of
E earphones, a Housing Authority E payment card E
(HK$3,700), cash $500, all of which were stolen from
F F
PW2.
G G
(b) A pair of pants (HK$200) was stolen from PW3.
H H
I (c) A pair of sport shoes (HK$700) was stolen from PW4. I
J J
(d) A watch with Octopus function and a lock (HK$1,460)
K were stolen from PW5. K
L L
CCTV
M M
12. At around 10:12 am, the defendant entered the staff room
N N
through the rear entrance of the restaurant. He stayed there for about 43
O minutes. O
P P
Criminal record
Q Q
13. The defendant has a long list of criminal records since 1978
R R
to 2021. A total of 74 previous records with 63 court appearances.
S S
14. Amongst those 74 previous records, 44 conviction records
T T
related to dishonesty offences, out of which 34 of them were theft offences.
U U
V V
-5-
A A
B B
Other offences including gambling in a gambling establishment,
C possession of offensive weapon in 2000, managing a vice establishments, C
assault occasional bodily harm, drugs offences and etc.
D D
E 15. His last conviction was in August,2021 for two theft offences. E
F F
16. He was released from prison in November, 2021, that was
G about a week ago prior to the commission of the present offence. G
H H
Mitigation
I I
17. The defendant is 69 years old. He was divorced in 2013 with
J J
no children. He lived alone in a public housing unit but the lease has been
K terminated by the Housing Authority in September 2022. K
L L
18. He receives social security assistance of around $4,000 per
M month. M
N N
19. The defendant has been suffering from sciatica as a result of
O an injuries to his back and left hand some 30 years ago. O
P P
20. As to other health problems, the defendant also suffers from
Q cataract and gout. Q
R R
S S
T T
U U
V V
-6-
A A
B B
Sentence
C C
21. It is well settled that the starting point for sentence of a
D D
burglary offence committed on non-domestic premises was 2½ years
E imprisonment. E
F F
22. As to the second charge, according to section 33(2)(d) of the
G Public Order Ordinance, it states that: “if after the age of 25 years or more, G
be sentenced to imprisonment for not more than three years.”
H H
I 23. There is no sentencing guideline for the second charge, it I
depends very much on the circumstances of each case.
J J
K Charge 1 K
L L
24. According to the summary of facts, the staff room was located
M near to the rear entrance of the restaurant, the back door was not locked at M
the material time. Clearly it was to provide convenience to the staff. On
N N
the other hand, it also provided an opportunity for the defendant to search
O the staff room and to steal from therein. O
P P
25. It is clear to me that the appropriate starting point is one of
Q two years. Q
R R
26. According to the case of HKSAR v Cheng Wai Kai
S CACC 338/2007 that there are a number of aggravating factors that the S
sentence can be adjusted upward.
T T
U U
V V
-7-
A A
B B
27. In the present case, I consider that the following matters as
C aggravating features:- C
D D
(a) The defendant has a long list of criminal records.
E E
(b) He was released from prison just a week ago at the time
F F
of the commission of present offense.
G G
28. The past sentence obviously has no deterrent effect upon the
H H
defendant.
I I
29. As said in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 that
J J
one of the purposes of passing a deterrent sentence on a persisting offender
K is to protect the public in general. K
L L
30. I consider that a sentence must be substantially higher in order
M to deter the defendant from committing further similar offenses. Otherwise, M
it simply loses its deterrent effect.
N N
O 31. Against this background, I consider that the starting point O
should be adjusted upward by an additional 9 months.
P P
Q 32. The total sentence for charge one is 2 years and 9 months, Q
given the 1/3 discount, it reduces to 22 months.
R R
S S
T T
U U
V V
-8-
A A
B B
Charge 2
C C
33. I have the opportunity to examine the scissors itself. It is
D D
generally for household use and can be easily purchased from places like
E the Japan Home. The blade which is about 3 inches long which does not E
appear to be as sharp as a knife. The pair of scissors is also wrapped up by
F F
plastic when it is closed.
G G
34. According to the summary of facts, the defendant took out the
H H
pair of scissors and left very quickly when PW1 intended to call the police.
I I
J J
35. The defendant also said that he carried the pair of scissors to
K protect himself as his father bore a lot of grudges with others. K
L L
36. With this information in mind, I consider that a starting point
M of 6 months is appropriate. I reduce the sentence to 4 months after 1/3 M
discount.
N N
O Totality O
P P
37. The defense cited the case of Secretary for Justice v Liu Chi
Q Yung [2007] 1 HKC 571 that “concurrent sentences were only appropriate Q
for offences that could probably be said to have been committed in the
R R
course of a single transaction.”
S S
T T
U U
V V
-9-
A A
B B
38. In Liu Chi Yung’s case, the appellant used the knife (the
C charge of offensive weapon) to stab on the neck of the police office (the C
wounding charge). Obviously this is a single transaction of event.
D D
E 39. However, in the present case, the defendant claimed that it E
was due to his late father’s background that he carried the scissors to
F F
protect himself.
G G
40. The prosecution informed me that according to the
H H
prosecution case, the defendant did not do anything with the scissors, he
I just picked it up and left the scene. He did not say anything as well. I
J J
41. While the defence insisted that it was a single transaction
K because the defendant said under caution that:- K
L L
“he stole things to sell since he had no money and at that time
outside the restaurant, he was afraid after he had stolen things,
M so he had the pair of scissors with him for self-protection.” M
N N
42. He further explained under caution that he carried the pair of
O scissors to protect himself because of his late father who bore grudges with O
others when he was alive.
P P
Q 43. It is clear to me that there was no evidence to suggest that the Q
defendant used the pair of scissors in the commission of the burglary
R R
charge.
S S
44. In the present circumstances, I disagree with the defence that
T I should impose a concurrent sentence as it simply cannot reflect the T
culpability of the offence.
U U
V V
- 10 -
A A
B B
C 45. As such, I order 2 months from charge two to run C
consecutively to charge one.
D D
E Total sentence E
F F
46. Charge one: 22 months’ imprisonment
G G
Charge two: 4 months’ imprisonment, 2 months from
H H
Charge two to run consecutively to Charge
I one. I
J J
It arrives at a total of 2 years’ imprisonment.
K K
L L
M ( M Chow ) M
Deputy District Judge
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 179/2022
C [2023] HKDC 53 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 179 OF 2022
F F
G ---------------------------------- G
HKSAR
H H
v
I LAW MAN KIN I
----------------------------------
J J
K Before: Deputy District Judge M Chow in Court K
Date: 11 January 2023
L L
Present: Mr Chan Kay K W, counsel-on-fiat, for HKSAR/Director of
M Public Prosecution M
Mr Wong James L W, instructed by V Hau & Chow,
N N
assigned by the Director of Legal Aid, for the defendant
O Offence: [1] Burglary（入屋犯法罪） O
P
[2] Possession of offensive weapon in a public place（在公 P
眾地方管有攻擊性武器）
Q Q
R ----------------------------------------- R
REASONS FOR SENTENCE
S S
-----------------------------------------
T T
U U
V V
-2-
A A
B B
1. The defendant pleads guilty to two charges, namely:-
C C
(a) Charge one: Burglary;
D D
E (b) Charge two: Possession of offensive weapon in a public E
place, contrary to S.33(1) and (2) of the Public Order
F F
Ordinance, Cap 245.
G G
Summary of facts
H H
I 2. On 16 November 2021 at around 11 am, PW1 found I
ransacking signs inside the staff room of “2 café” restaurant and saw the
J J
defendant fiddle with a pile of clothes outside the restaurant.
K K
3. When confronted by PW1, the defendant did not respond to
L L
PW1’s questions.
M M
4. When PW1 took out his mobile phone, the defendant
N N
immediately picked up a pair of scissors and quickly left the scene.
O O
5. PW1 followed the defendant into Mongkok MTR station.
P P
However, he lost sight of the defendant on the platform of Kowloon Tong
Q MTR station. Q
R R
6. PW1 reported case to the police.
S S
7. On the same day, at about 12:50 pm, the police found the
T T
defendant inside a toilet in the Kowloon Tong MTR station.
U U
V V
-3-
A A
B B
C 8. The following items were found in the basin inside the toilet:- C
D D
(a) A pair of scissors and
E E
(b) the stolen properties belonged to PW2, PW3 and PW4.
F F
G 9. The defendant was arrested for burglary and possession of G
offensive weapon. Under caution, the defendant said that “he stole things
H H
to sell since he had no money and that at the time outside the restaurant,
I he was afraid after he had stolen things, so he had the pair of scissors with I
him for self-protection.”
J J
K 10. In a video recorded of interview, the defendant stated that:- K
L L
(a) He went inside the restaurant through the rear entrance
M to use the toilet. M
N N
(b) The door was not locked at that time.
O O
(c) He saw some clothes, he wanted to get change as his
P P
clothes were wet.
Q Q
(d) He carried a pair of scissors to protect himself because
R R
his father bore grudges with many other people.
S S
(e) He bought the pair of scissors a day earlier.
T T
U U
V V
-4-
A A
B B
11. The stolen properties belonged to various staff of the
C restaurant include the following:- C
D D
(a) One wallet, an ATM card, a credit card, a pair of
E earphones, a Housing Authority E payment card E
(HK$3,700), cash $500, all of which were stolen from
F F
PW2.
G G
(b) A pair of pants (HK$200) was stolen from PW3.
H H
I (c) A pair of sport shoes (HK$700) was stolen from PW4. I
J J
(d) A watch with Octopus function and a lock (HK$1,460)
K were stolen from PW5. K
L L
CCTV
M M
12. At around 10:12 am, the defendant entered the staff room
N N
through the rear entrance of the restaurant. He stayed there for about 43
O minutes. O
P P
Criminal record
Q Q
13. The defendant has a long list of criminal records since 1978
R R
to 2021. A total of 74 previous records with 63 court appearances.
S S
14. Amongst those 74 previous records, 44 conviction records
T T
related to dishonesty offences, out of which 34 of them were theft offences.
U U
V V
-5-
A A
B B
Other offences including gambling in a gambling establishment,
C possession of offensive weapon in 2000, managing a vice establishments, C
assault occasional bodily harm, drugs offences and etc.
D D
E 15. His last conviction was in August,2021 for two theft offences. E
F F
16. He was released from prison in November, 2021, that was
G about a week ago prior to the commission of the present offence. G
H H
Mitigation
I I
17. The defendant is 69 years old. He was divorced in 2013 with
J J
no children. He lived alone in a public housing unit but the lease has been
K terminated by the Housing Authority in September 2022. K
L L
18. He receives social security assistance of around $4,000 per
M month. M
N N
19. The defendant has been suffering from sciatica as a result of
O an injuries to his back and left hand some 30 years ago. O
P P
20. As to other health problems, the defendant also suffers from
Q cataract and gout. Q
R R
S S
T T
U U
V V
-6-
A A
B B
Sentence
C C
21. It is well settled that the starting point for sentence of a
D D
burglary offence committed on non-domestic premises was 2½ years
E imprisonment. E
F F
22. As to the second charge, according to section 33(2)(d) of the
G Public Order Ordinance, it states that: “if after the age of 25 years or more, G
be sentenced to imprisonment for not more than three years.”
H H
I 23. There is no sentencing guideline for the second charge, it I
depends very much on the circumstances of each case.
J J
K Charge 1 K
L L
24. According to the summary of facts, the staff room was located
M near to the rear entrance of the restaurant, the back door was not locked at M
the material time. Clearly it was to provide convenience to the staff. On
N N
the other hand, it also provided an opportunity for the defendant to search
O the staff room and to steal from therein. O
P P
25. It is clear to me that the appropriate starting point is one of
Q two years. Q
R R
26. According to the case of HKSAR v Cheng Wai Kai
S CACC 338/2007 that there are a number of aggravating factors that the S
sentence can be adjusted upward.
T T
U U
V V
-7-
A A
B B
27. In the present case, I consider that the following matters as
C aggravating features:- C
D D
(a) The defendant has a long list of criminal records.
E E
(b) He was released from prison just a week ago at the time
F F
of the commission of present offense.
G G
28. The past sentence obviously has no deterrent effect upon the
H H
defendant.
I I
29. As said in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 that
J J
one of the purposes of passing a deterrent sentence on a persisting offender
K is to protect the public in general. K
L L
30. I consider that a sentence must be substantially higher in order
M to deter the defendant from committing further similar offenses. Otherwise, M
it simply loses its deterrent effect.
N N
O 31. Against this background, I consider that the starting point O
should be adjusted upward by an additional 9 months.
P P
Q 32. The total sentence for charge one is 2 years and 9 months, Q
given the 1/3 discount, it reduces to 22 months.
R R
S S
T T
U U
V V
-8-
A A
B B
Charge 2
C C
33. I have the opportunity to examine the scissors itself. It is
D D
generally for household use and can be easily purchased from places like
E the Japan Home. The blade which is about 3 inches long which does not E
appear to be as sharp as a knife. The pair of scissors is also wrapped up by
F F
plastic when it is closed.
G G
34. According to the summary of facts, the defendant took out the
H H
pair of scissors and left very quickly when PW1 intended to call the police.
I I
J J
35. The defendant also said that he carried the pair of scissors to
K protect himself as his father bore a lot of grudges with others. K
L L
36. With this information in mind, I consider that a starting point
M of 6 months is appropriate. I reduce the sentence to 4 months after 1/3 M
discount.
N N
O Totality O
P P
37. The defense cited the case of Secretary for Justice v Liu Chi
Q Yung [2007] 1 HKC 571 that “concurrent sentences were only appropriate Q
for offences that could probably be said to have been committed in the
R R
course of a single transaction.”
S S
T T
U U
V V
-9-
A A
B B
38. In Liu Chi Yung’s case, the appellant used the knife (the
C charge of offensive weapon) to stab on the neck of the police office (the C
wounding charge). Obviously this is a single transaction of event.
D D
E 39. However, in the present case, the defendant claimed that it E
was due to his late father’s background that he carried the scissors to
F F
protect himself.
G G
40. The prosecution informed me that according to the
H H
prosecution case, the defendant did not do anything with the scissors, he
I just picked it up and left the scene. He did not say anything as well. I
J J
41. While the defence insisted that it was a single transaction
K because the defendant said under caution that:- K
L L
“he stole things to sell since he had no money and at that time
outside the restaurant, he was afraid after he had stolen things,
M so he had the pair of scissors with him for self-protection.” M
N N
42. He further explained under caution that he carried the pair of
O scissors to protect himself because of his late father who bore grudges with O
others when he was alive.
P P
Q 43. It is clear to me that there was no evidence to suggest that the Q
defendant used the pair of scissors in the commission of the burglary
R R
charge.
S S
44. In the present circumstances, I disagree with the defence that
T I should impose a concurrent sentence as it simply cannot reflect the T
culpability of the offence.
U U
V V
- 10 -
A A
B B
C 45. As such, I order 2 months from charge two to run C
consecutively to charge one.
D D
E Total sentence E
F F
46. Charge one: 22 months’ imprisonment
G G
Charge two: 4 months’ imprisonment, 2 months from
H H
Charge two to run consecutively to Charge
I one. I
J J
It arrives at a total of 2 years’ imprisonment.
K K
L L
M ( M Chow ) M
Deputy District Judge
N N
O O
P P
Q Q
R R
S S
T T
U U
V V