HKSAR v. Ng Tan Tan

DCCC 483/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 483 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 burgled premises was the McDonald’s Restaurant at Shop Nos. R36-R37, 3^rd floor, Choi Yuen Plaza, Choi Yuen Estate, Sheung Shui in the New Territories.  The restaurant operated daily from 6 a.m. until midnight.  A big safe was placed on the floor in the Manager’s Room in the restaurant. There were wooden lockers on the safe. All the shop managers would possess the key to the safe. I was told that at the material time there were 5 managers, of which the Defendant’s girlfriend was one.  After the restaurant closed, the anti-theft alarm system was activated, but had not been working since 24 March, 2016.

3.On 1 April, 2016, at about 4 a.m., Ms Tang Yin-man, one of the 5 managers of the restaurant (not the Defendant’s girlfriend), was the last person to leave the restaurant.  Before she left, she had put the day’s takings, amounting to HK$37,258.20 into a blue basket and put these into the safe. Inside the safe, there was also HK$30,000 in cash for petty cash.  After securing the lock of the safe, she put the key of the safe into one of the wooden lockers on the safe, but did not lock it.  She then secured all the doors, including the glass front door, the side glass door and the back door, before she left the restaurant.

4.When another manager, Mr Siu Ka-ho, returned to the restaurant at about 4.30 a.m., he found that the safe in the Manager’s room was not locked. After counting the cash in the safe, he found that some cash was missing, and made a report to the police.  It was later confirmed that the day’s takings in the blue basket, i.e. HK$37,258.20, and HK$9,000 from the cash for petty cash, making a total of HK$46,258.20, was missing from the safe – there was only HK$21,000 from the petty cash left in the safe.

5.CCTV footages of the restaurant revealed that someone had entered the restaurant via the back door at 4.15 a.m. and left at 4.19 a.m.  Investigations revealed that the Defendant had been a manager at the McDonald’s at San Fung Avenue, a 10 minute walk from the shop. His last day of work was 1 April, 2016.

6.The Defendant was arrested near his home in Fanling   on 1 April, 2016 at 10.58 p.m.  Under caution, he admitted he had been to Choi Yuen Plaza at about 3 a.m. that day. Upon a body search, cash HK$6,952 was seized from his wallet. HK$1,780 was seized from a metal box underneath his bed during a subsequent house search. He was released on bail at 2 a.m. on 3 April, 2016.  At 3.35 a.m. on the same day, the Defendant returned to the police station, bringing along cash of HK$37,800.  He admitted in a subsequent video record of interview under caution that the HK$37,800 was stolen from the restaurant, as was cash $6,000 seized by the police from his wallet.  He worked at the McDonald’s at San Fung Avenue.  He had telephoned Ms. Tang at 4 a.m. on 1 April, 2016 telling her he wanted to take something from the shop, and realized she was going off duty soon.  Out of greed, he used a key he had to the back door to gain entry to the premises and entered the Manager’s room and opened the safe. He took away the cash contained in a blue basket and a pile of HK$100 banknotes, and then left via the back door.  He disposed of the blue basket, and then returned to McDonald’s at San Fung Avenue to pack up, and then returned home, hiding the stolen cash inside a cabinet in the toilet. He also surrendered to the police 3 keys – the keys to the main door, back door and side door of the restaurant. His girlfriend was one of the 5 managers at the restaurant, and he had discreetly duplicated the keys to the main door and the Manager’s room kept by his girlfriend.  The key to the back door was a spare key kept inside the safe – he took it from the safe when he visited his girlfriend at the restaurant on 29 March, 2016, without her noticing.  He had spent $2,000 of the stolen money on food and entertainment. He also said he knew the alarm system at the restaurant was out of order and he knew there would be a period of time when there would be nobody at the restaurant.  He planned to burgle the premises during that period.  He had debts in excess of HK$200,000.

7.By entering a plea of guilty to the charge and admitting the Summary of facts, the Defendant has admitted stealing the cash of $46,258.20 at the material time and place.  I was satisfied beyond all reasonable doubt that the facts supported the charge and I convicted the Defendant on the charge.

Previous Convictions

8.The Defendant has a clear record.

Mitigation

9.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 30 years and educated to Form 5.  He had worked at McDonald’s since he graduated from Form 5, and was promoted to the position of manager in 2006. He was single and lived with his parents, younger sister and nephew.

10.Mr. Wong submitted that the greatest mitigation he could put forward on behalf of the Defendant was his plea of guilty at the first opportunity.  He had surrendered himself to the police station shortly after he was released on police bail and brought with him the greater part of the money that he had stolen. Including the money that had been seized by the police from his wallet, there was still an outstanding of HK$1,506.20. Mr. Wong submitted that the Defendant was ready to pay this balance amount as well.  I ordered that this should be paid. The money that was seized from his wallet and that he had surrendered to the police has been dealt with in the Prosecution’s application for the disposal of exhibits – they have been returned to the victim.  I am informed that full restitution has now been made. The victim had therefore sustained no loss.

11.He also submitted letters in mitigation from the Defendant, his family members, his girlfriend, his friends, his ex-superior at McDonald’s, and from the general manager of McDonald’s in the area, all seeking leniency on behalf of the Defendant. His parents and siblings viewed him as a filial son and devoted brother, and are shocked by the present offence. They were all in court to show their support of the Defendant. It would appear that the Defendant was heavily in debt because of bad investments and his gambling habit.  He did not disclose his financial situation to his family or his girlfriend. Instead, out of momentary greed and foolishness, he committed the present offence. He and his girlfriend had planned to marry in December, but now that plan will have to be delayed.  His former supervisor and the general manger of McDonald’s in that area who are both friends of the Defendant both speak favorably of him. His former colleagues at McDonald’s also speak favorably of the Defendant. They all view the offence to be out of character.

12.Mr. Wong submitted that the Defendant was genuinely remorseful, as reflected by his surrendering to the police with the greater part of the stolen money, his admissions to the police under caution and by his plea at the first opportunity. Full restitution has now been made, and the victim has suffered no loss.  He sought leniency on behalf of the Defendant. After hearing Counsel in mitigation, I adjourned the matter until today, calling for a background report, remanding the Defendant in custody.

13.The background report is now before me.  Counsel informs me that he has explained the contents to the Defendant and the Defendant agrees with the contents.  The background report confirms much of what was said in mitigation.  I have carefully considered all that has been urged upon me, as well as the contents of the various letters in mitigation and the background report.

Sentencing Considerations

14.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  ½  years’ imprisonment.

15.In the present case, I find there were no aggravating features in the commission of the offence in that 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.  The Defendant has co-operated fully, he surrendered himself and the greater part of the stolen money to the police almost immediately after he was initially arrested and granted police bail, and made a full confession when interviewed under caution, and he admitted his guilt at the first opportunity. Full restitution has also now been made. I do find that there is an element of breach of trust here, in that the Defendant duplicated the keys to the premises which he took from his girlfriend, a manager at the restaurant, without her noticing.  He telephoned Ms. Tang and learned what time she was going off duty and burgled the premises at a time when he knew no one would be there.  He had taken the spare key to the back door of the premises that was kept in the safe during a previous visit to the restaurant to visit his girlfriend.  He also was employed at another nearby McDonald’s and clearly knew how McDonald’s operated, and where the keys to the safe was kept in the Manager’s room.  There was pre-meditation by the Defendant in committing the present offence.

16.The Defendant has made full restitution.  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 to reflect this.

17.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 has been made – the Defendant is sentenced to 17 months’ imprisonment on the charge. I can see no other matters that can warrant any further discount.