HKSAR v. Chan Tsz Ying

DCCC 76/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 76 OF 2015

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Reasons for Sentence

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1.The defendant has pleaded guilty to one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.The defendant used to work at an ice-cream shop in Sai Kung, New Territories.  She worked there between August 2013 and January 2014 on a part-time basis.  On 25 March 2014, at about 7.36 am, the defendant entered the shop using a key and left five minutes later.  She locked up the gate before she left.  All this is captured on CCTV footage of a neighbouring shop.  The defendant, after she had entered the shop, took $870 out of $1,000 from a cash register.  

3.Eight months later, the defendant was arrested at home.  Under caution, she admitted the offence to the police. 

4.On the first day of trial, the defendant initially pleaded not guilty.  The owner of the shop and her previous employer was called as PW1 to give evidence.  

5.The defence case was that the defendant had some wages outstanding.  This would be the reason she felt justified in entering with a key she kept and taking some money from the cash register.  The owner, PW1, denied that wages were outstanding.  It was also suggested that the employment had not been terminated, which was denied. 

6.After this witness had given evidence, Mr Kwong took further instructions and the defendant pleaded guilty. 

7.The defendant is 24 years old and had a clear record.  She is a young mother of a 4-year-old and is now pregnant with her second child due in three months’ time.  The defendant lives in Sai Kung with her husband and daughter and is now a housewife.  Her husband works in the construction industry and earns a good income to support them all, $40,000 a month as a skilled machinery driver. 

8.As a result of her plea, the defence case that she believed she was justified to enter and take money, her pregnancy and her previous clear record, I called for a background report and a community service order report.  I will not repeat the contents of the report but the reports are in detail.  They explain the defendant’s background, the family situation as well as the fact she miscarried her first child in 2008.  After this, she suffered emotionally and had received some psychiatric help in 2011.  She dabbled in ketamine in 2013 but sought the help of a social worker in early 2014 and was referred to the United Christian Hospital for further psychiatric treatment and medication.  Obviously, her life stabilised and she fell pregnant again.

9.The defendant explains her ignorance of the law and expresses genuine remorse in the reports.  Her husband thought that her own view of the wage dispute or wages owed led her to think she had the right to enter and take $870. 

10.Her family, according to the reports, is very supportive.  They say she is a caring wife and a responsible mother.  All are here today to support the defendant and ask for leniency on her behalf.

11.The probation officer is of the view that although the defendant is willing to do community service, she is not suitable for several reasons.  The defendant previously dabbled in dangerous drugs, is presently pregnant and has and is receiving psychiatric treatment.  Those factors make her unsuitable for community service.

12.It is the norm to consider a starting point of 2 years and 6 months for a burglary of a non-domestic premise such as a shop, and that is when there is an absence of either mitigating or aggravating factors.  

13.The case here is somewhat unusual.  The defendant has a clear record and is normally a law-abiding person.  There is no evidence of her being in financial difficulty, and it would seem she committed the offence because she wrongly thought she was entitled to do it as she thought wages were outstanding.  Lastly, PW1 has written a letter on behalf of the defendant, and this is after PW1 has given evidence.  She says she has forgiven the defendant and hopes and asks for leniency on the defendant’s behalf.

14.I would have taken the unusual and lenient approach and considered community service appropriate under such circumstances.  However, she, despite being willing to do community service, is not deemed suitable.  I do not think in view of the reasons, it is appropriate to consider community service in spite of the recommendation.  It is highly unusual to consider a non-custodial sentence for burglary, and I have not done it in the past.  But with community service not an option, I will consider a suspended sentence.  It may seem exceptionally lenient for a serious offence but it will still be a sword hanging over the defendant’s head to ensure she does not reoffend for a period of time.

15.Defendant, please stand up.  After careful consideration of the facts, mitigation, the letter from the owner of the shop as well as the misguided explanation put forward by the defendant, I will take a starting point of 2 years and reduce it by one-third for your plea. After that deduction, you are sentenced to 1 year and 4 months’ imprisonment which I will suspend for 3 years.

16.Let me explain to you a suspended sentence.  You do not immediately have to serve this 1-year-and-4-month sentence.  However, if in the next three years from today you commit an offence punishable by imprisonment and you are convicted by a court, it will be very likely you will serve this 1-year-and-4-month sentence plus any further sentence for the other offence.  You understand what a suspended sentence means?

DEFENDANT: Yes, understand.

17.And I will also make compensation order of $1,000 payable to PW1, to be deducted from defendant’s bail.