HKSAR v. Shum Kai Ho

DCCC 256/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 256 OF 2016

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Reasons for Sentence

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1.The defendant has been convicted of one offence of burglary.

2.The burglary occurred at a pharmacy in Mong Kok on 28 May 2015.  It can be described as a non-domestic premises.

3.The defendant is the former owner of that pharmacy.  The present owner acquired the ownership of the pharmacy on paying the defendant in 2013.  From that point onwards, the defendant became an employee of that pharmacy.

4.The facts show that the pharmacy had a dispensary room.  The door of the dispensary room was made of wood.  Inside the dispensary, medicines are stored inside racks which are locked by a glass window.  The keys to the glass window were often put on a table outside the dispensary room.

5.The defendant had retained or possessed a key to the main gate of the pharmacy.  He had this during his employment and apparently still had it.

6.The defendant’s employment with the pharmacy was terminated in March 2015.  The burglary occurred on 28 May 2015.  On 27 May 2015, after work finished in the evening, the glass windows in the dispensary room were locked.  The keys were left on a table outside the dispensary room. The wooden door of the dispensary and the main gate of the pharmacy were both locked before she left.

7.The burglary came to light as a result of the defendant making a call, and that was on 28 May at about 2 o’clock in the morning.  He informed the new owner that he had been told that the side gate of the pharmacy had not been locked.  The owner thought nobody could enter the pharmacy, so did not pay any attention to the defendant’s call, and when she returned to the pharmacy at about 11.15 the next day, she found that medicines amounting to $26,250 had been stolen from the dispensary room.  There was no sign of any ransacking or prising, and in fact, the defendant was captured on a CCTV camera outside the pharmacy, entering the pharmacy by opening the main gate and then leaving with a carton box via the back door.

8.The defendant has admitted his antecedents.  He is 33 years old.  He lives with his father.  As far as his criminal record is concerned, he has four previous conviction records of matters that are not relevant to this charge.  He was convicted of various gambling offences, and in fact has been sentenced to imprisonment in July of last year for various offences to do with criminal damage, intimidation, and claiming membership of a triad society.

9.In mitigation, the defendant accepts that he was a trespasser in those premises.  In mitigation it was said he had retained the key to access certain Chinese medicinal oils, but he accepts he was limited in his access, and his use of the key to enter the premises for the purpose of stealing made him a trespasser.

10.The defendant says his motivation for doing this was that he found himself in financial difficulties.  He had extended money to a friend who needed the money for medication.  He had borrowed the money himself and was unable to make the repayments, and this had been particularly difficult after he had lost his employment at the pharmacy in March 2015.

11.The defendant has pleaded guilty to one charge of burglary which can be described as a commercial premises or non‑domestic premises burglary.  The guideline sentence is that the starting point, for a person of clear record who pleads not guilty to a non-domestic premises burglary, can expect a starting point for sentence of 30 months’ imprisonment.

12.The defence have said that this is not a typical case of burglary, and it says the normal starting point relates to, again, a normal burglary where force is used to access the premises.  Here, there is no prising or damage to the premises.  The defendant was a former owner of the premises.  It is said the burglary has some aspects of an opportunistic entry to an empty premises; that a lower starting point may be adopted.

13.The gravamen of a burglary is the unwarranted invasion of private premises.  Here, the premises were empty, and known to be empty by the defendant.  He abused the retention of the key, and it did enable him to access the premises without damaging the premises and at a time when he knew they could not be occupied.  The defendant also behaved somewhat unusually in immediately informing the owner of a problem in respect of the pharmacy, which, due to the presence of the CCTV camera, would inevitably lead to his arrest and detention.

14.I consider that when all these factors are taken into consideration, some amelioration of the usual starting point can be accommodated in these facts.

15.I consider that a starting point on these facts for this burglary, an appropriate starting point for sentence to be one of 24 months’ imprisonment.

16.The defendant is entitled to a one-third discount for his plea of guilty from that figure.

17.That leads to a final figure for sentence of 16 months’ imprisonment, and that will be his sentence.