HKSAR v. Ho Tsz Kwan, Hugo

DCCC 349/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 349 OF 2016

-----------------

-----------------

-------------------------------------------

REASONS FOR SENTENCE

-------------------------------------------

1.The Defendant pleaded guilty to two counts of “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

The first charge

2.Mr Lai was the cook of a restaurant known as “Spicy Crab Kingdom” located at Shop No. 6B, Ground floor & Shop No.1, 1^st floor, the Sorentino, No. 483 Shun Ning Road, Cheung Sha Wan, Kowloon.  At 11.15 p.m. on 7 March, 2016, Mr. Lai went off duty and left the restaurant with other colleagues after locking the front door and latching the rear partition door. When he returned to the restaurant at 9.45 a.m. the following morning, he found that the rear partition door was pushed open and the cash register valued at HK$500 containing cash HK$2,000 were missing. He noticed that the electrical wires connected with the cash register had been cut.  Reviewing the CCTV footage of the restaurant, Mr. Lai saw that a male with blonde hair wearing a white helmet had pushed open the rear partition door at about 3 a.m. on 8 March, 2016. He left the restaurant with the cash register which contained HK$2,000.  A report was made to the police.   The CCTV footages of the Sorentino Car Park, which was connected to the rear partition door of the restaurant, also captured that a male in a white helmet had entered the car park at 2.51 a.m. on 8 March, 2016. He then took a ladder and entered the lift of the car park. At about 2.53 a.m., he was seen on the CCTV footage to be walking towards the rear partition door of the restaurant. At about 3.02 a.m., that same male was seen on the CCTV footage to enter the lift with a ladder and an item that appeared to be a cash register. He then left the car park.

The second charge

3.Mr. Luk was the owner of a café known as “Holy Chef” located at the Ground floor, Cheung Fai Building, Nos. 401-405 Po On Road, Cheung Sha Wan, Kowloon.  At about 11.15 p.m. on 9 March, 2016, he closed the café and left after locking the front and rear doors.  When he returned at 9.30 a.m. the next morning, he found that the cash register initially placed in the kitchen which had HK$450 inside was missing. He also saw that the glass of the rear door was broken and found a stone which did not belong to the café near the rear door.  A report was made to the police

Arrest and Cautioned Statement of the Defendant

4.At about 12.10 a.m. on 11 March, 2016, police officers spotted the Defendant walking along Cheung Wah Street in Cheung Sha Wan. He was carrying a black object in his right hand and a brown paper bag on his left shoulder. As the Defendant was acting furtively, he was put under observation. The Defendant was observed going to a refuse collection point on Cheung Wah Street where he discarded the black object. He left the refuse collection point. One of the police officers who had kept the Defendant under observation immediately checked the black object discarded by the Defendant and saw that it was part of a cash register with prize marks on its bottom.  The police officers continued to follow the Defendant and saw that he entered Cheung Fai Building. The Defendant came out of the said building at 12.35 a.m.  carrying a brown paper bag on his left arm and a brown bag in his right hand.  The police officers intercepted the Defendant at No. 360 Shun Ning Road and escorted him to the junction Shun Ning Road and Cheung Wah Street for inquiry and search. Upon search, cash of HK$145 was found in a plastic bag from the left pocket of the Defendant’s trousers.  The Defendant was cautioned and asked why he had discarded a cash register at the refuse collection point. The Defendant said he did so because he had financial difficulties and the cash register belonged to the “Spicy Crab Kingdom” Restaurant.  He also admitted to burglary of the “Holy Chef” Café the night before. He was immediately arrested and cautioned for the two offences of burglary that he had admitted. Under caution he said that his girlfriend had overspent and he was in financial difficulties.

5.A subsequent house search of his residence resulted in the seizure of the white helmet, a brown bag containing a pair of scissors, a screwdriver and a hammer, a red and white sweater, a blue hoodie and spare parts of a cash register.

6.At a subsequent video record of interview under caution, he admitted the two offences. 

7.CCTV footages of Cheung Fai Building captured the Defendant leaving and returning to the building carrying the helmet on both 8^th and 10^th March, 2016.

Previous Convictions

8.The Defendant has a clear criminal record.

Mitigation

9.The Defendant is aged 21 years. He is single and lives with his parents. He is the only child in his family.  No issue was taken with the contents of the Antecedent Statement that was read into the record by the Prosecution.  In mitigation, Counsel submitted that his father, aged 65 years, is retired, whilst his mother, aged 56 years, is a part-time worker at a MTR station.  He had been studying a diploma course at the Hong Kong Institute of Vocational Education. At the time of the offences, the Defendant was worked at a salon, earning $8,500 a month.  Because of financial difficulties, he acted foolishly and committed the present offences in the hope of settling his financial problems. He had told the police under caution that his girlfriend had incurred debts from overspending and he hoped to help her settle these.  Letters in mitigation from the Defendant and his parents were submitted seeking leniency on behalf of the Defendant. His parents were in court to show their support, as was his social worker.  Counsel for the Defendant sought leniency on behalf of the Defendant submitting he acted out of foolishness and momentary greed, he was very young and had made a foolish mistake and was genuinely remorseful.  He had already been remanded for 3 months and had a previous clear record. He was also willing to compensate the victims. He would return to IVE to continue his education and apologized to the victims – he was willing to perform community service – he asked for a non-custodial sentence for the Defendant.  The value of the stolen properties was not high and no injury was caused to any occupant.

Sentence

10.I have before me the Background & Detention Centre Reports that I have called for. Counsel for the Defendant confirmed that the Defendant agrees with the contents.  The Detention Centre is not recommended for the Defendant as he is considered to be medically unfit as he is underweight.

11.The 2 reports I have before me have set out the background of the Defendant in great detail. It is clear from both reports that the Defendant is much loved by his parents who have done their utmost for him. He did not do well academically. After leaving school, he remained idle at home and later started work as a salon junior in late 2010.  He was unable to sustain a stable working pattern and intermittently worked as a laboring worker, a convenience store attendant, and a salon junior. At leisure, he would frequent shopping malls and cyber cafes with undesirable peers.  He did not complete the one year diploma course in hotel management and tourism studies that he enrolled for in September, 2015 as he had come to know his girlfriend and they had started dating – he became lax in his studies and quit after the first term. He indulged in fun-seeking activities with his girlfriend and other peers.    According to the report from the Commissioner of Correctional Services, he told the interviewing officer that he committed the burglary offences as he did not have money to sustain his entertainment expenses.

12.There is a well settled sentencing guideline for burglary of commercial premises. According to the guideline, the starting point for a single burglary of commercial premises committed by a first offender of full age where there are no aggravating or mitigating features is  2  1/2years’ imprisonment.

13.In the present case, I find there was no aggravating feature in the commission of the offences in that the value of the stolen properties is not high, the Defendant committed the offences alone, the offences were committed at the time when the occupants had left the premises and that although there was damage caused in the course of both burglaries, the damage was not substantial. Financial hardship and youth are not valid factors justifying a further reduction of the sentence.

14.For charge 1, the value of the stolen cash register was $500 and the cash stolen was $2,000.  For charge 2, the stolen cash together with the cash register and the repair costs amounts to $3,100 I am told.  The Defendant has made full restitution to the victims of these amounts. 

15.In my view, the only appropriate sentence must be a custodial sentence. In respect of each count of burglary, I take as a starting point 2 1/2 years’ (i.e. 30 months) imprisonment, discount this by one-third to reflect the Defendant’s pleas and sentence him to 1 year and 8 months’ (i.e. 20 months) imprisonment on each count.

16.The Defendant has made full restitution. Regarding restitution, it is well settled that this can amount to mitigation, particularly when coupled with a plea of guilty (see HKSAR v Leung Shuk Man [2002] 3 HKC 424 and HKSAR v Cheung Suet Ting [2010] 6 HKC 249). In the circumstances, he is entitled to a discount of 3 months from his sentence for each of the charges.  He is therefore sentenced to 1 year and 5 months’ (i.e. 17 months) imprisonment on each count.

17.The two burglaries committed by the Defendant are entirely separate and distinct offences. In theory, their sentences should run consecutively. Having taken into consideration the totality principle, I am satisfied that a total sentence of 17 months is sufficient to reflect the criminality of the Defendant’s conduct.  I therefore order that the sentences on charges 1 and 2 be served concurrently.