HKSAR v. Tong Hoi Fung

DCCC 482/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 482 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty to theone count of burglary, contrary to Sections 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

Summary of Facts

2.The victim herein, “Taylor Shellfish Farms”, hereinafter referred to as ‘the restaurant’, is located at Shops C & D, Ground floor, Lai Yin Court, Nos. 80-86 High Street, Sai Ying Pun and was operated by Ho Siu-to (PW1).

3.Between November, 2015 and January, 2016, the restaurant was renovated. The Defendant was one of the renovation workers hired by the renovation company, and was in charge of buying a padlock for the restaurant. He kept one of the 3 padlock keys during the renovation period.  When the renovation was almost completed, he handed the padlock key to Andy Yu Wing-kit (PW4), the proprietor of the renovation company.  After duplicating two more keys upon the instruction of PW1,  PW4 kept one padlock key himself and handed over the other 4 keys to PW1.

4.The restaurant began operation in mid-January, 2016.

5.At around 2.50 a.m. on 28 March, 2016, Lee Kwok-wing (PW2), the manager of the restaurant, used the padlock to secure the main door of the restaurant. PW1 and his employees then left. On their return at about 10.50 a.m. the same day, Lee Kin-sang (PW3), a staff of the restaurant, found the padlock missing. He entered the restaurant and found the till of the cashier counter, valued at $880, and the cash in the till of about $1,200, were missing. A bent metal spoon was found on the cashier counter.

6.CCTV footages of the restaurant and the nearby 7-11 Convenience Store on 28 March, 2016 were seized and viewed, which captured the burglar. Having viewed the CCTV footages of the restaurant, PW4 recognized the burglar to be the Defendant based on his appearance, clothing and movement.  A house search was conducted at the Defendant’s home under a search warrant and a cap and jacket were seized.  The Defendant was arrested on 6 April, 2016. Under caution he admitted to stealing $540 from the till that night.   In a subsequent video record of interview under caution, the Defendant admitted to stealing $540 from the till that night.

7.By entering a plea of guilty to the charge and admitting the Summary of facts, the Defendant has admitted stealing the cash of $1,200 that was in the till and the till itself, valued at $880, at the material time and place.  I was satisfied beyond all reasonable doubt that the facts supported the charge and  accordingly I convicted the Defendant on the charge.

8.A photo album of 42 photographs was produced by agreement. Photos 1 to 30 were still images from the CCTV footages from the 7-11 Convenience Store, the restaurant and the building where the Defendant lived, while photos 31 to 36 depicted the restaurant in question, photos 37 to 38 depicted the bent metal spoon found in the restaurant and photos 39 to 42 depicted the cap and jacket seized from the Defendant’s home.

Previous Convictions

9.The Defendant has 16 previous convictions in 9 court appearances, including 7 for theft, 2 for robbery and 1 for going equipped for stealing.  His last dishonesty related offence was in 1987 for robbery when he was sentenced to 6 years’ imprisonment.  His most recent conviction was in 2010 when he was fined $1500 for an offence of common assault.

Mitigation

10.The Antecedent Statement was read into the record by the Prosecution – no issue was taken on the contents.  This disclosed that the Defendant was born in Hong Kong and aged 49 years and educated to Form 1. He had been a decoration worker after leaving school.  He was married in China in 1994 but divorced in 2002. He had no children. He lived in Hong Kong with his mother, younger brother, sister-in-law and niece.

11.Mr. Hui submitted that the Defendant was a welding worker before his arrest. He contributed $3,000 a month to his aged mother, and $2,000 a month to support his adopted daughter for her school fees and living expenses.  Counsel submitted that the Defendant was discharged from prison in 1992 after serving his sentence for robbery, and he had turned over a new leaf, working as a decoration worker.  Thereafter, his only conviction was in 2010 for common assault, for which he was fined. Counsel also submitted a letter from the Defendant’s adopted daughter seeking leniency on behalf of the Defendant.  He also submitted a letter from PW1, wherein PW1 wrote that the Defendant had sent him an SMS message on 28 July, 2016 to apologize for stealing from the restaurant.  He also sought leniency on behalf of the Defendant. Mr. Hui also submitted that the Defendant was willing to make full compensation to the victim for the cash stolen and the value of the till , totaling $2,080, and asked for this sum to be deducted from the Defendant’s bail money. He submitted that at the material time, the Defendant was under the influence of alcohol, and there had been no damage caused to the premises.   

Sentencing Considerations

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 were no aggravating features in the commission of the offence in that the value of the stolen properties is not high, the Defendant committed the offence alone, the offence was committed at the time when the occupants had left the premises and no damage was caused to the premises. Being under the influence of alcohol in my view does not amount to a mitigating factor. I do note that his last offence involving dishonesty was in 1987.  In the circumstances, I will not enhance the starting point solely because of the Defendant’s previous convictions.

14.The Defendant is prepared to compensate the victim for the losses sustained, amounting to $2,080, and asks that this be set off from his bail.   It is well settled that this can amount to mitigation, especially when coupled with a plea of guilty (see HKSAR v. Leung Shuk Man [2002] 3 HKC 424, and HKSAR v. Cheung Yuet Ting, [2010] 6 HKC 249). He is entitled to a further discount of 3 months’ to reflect this.

15.I have borne in mind all that has been urged upon me in mitigation on behalf of the Defendant as well as the authorities that have been submitted. In my view, the only appropriate sentence must be a custodial sentence. 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 plea and a further discount of 3 months to reflect the full compensation that will be made – the Defendant is sentenced to 17 months’ imprisonment on the charge.

16.He is ordered to pay compensation of $2,080 to the victim herein, and this amount will be set off from his bail money.