HKSAR v. Yau Chun Wai

DCCC 684/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 684 OF 2016

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REASONS FOR SENTENCE

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

Summary of Facts

2.The victim herein, “Tung Sing Lau Seafood Restaurant”, hereinafter referred to as ‘the restaurant’, is located at No. 94, Ma Wan Chung, Tung Chung, Lantau Island. “Ching Kei” was another restaurant located nearby at No. 106, Ma Wan Chung, Tung Chung.

3.At around 10.30 p.m. on 13 May, 2016, Wan Chun-lam, a staff member of the restaurant, was the last to leave the restaurant, and he lowered the steel gate between the kitchen and dining area used for passing dishes and locked the cash register, the front door and back door of the restaurant.

4.The Defendant was seen by Cheng Kwok-wai, the owner of the restaurant as well as the restaurant “Ching Kei”, at about 12.34 a.m. on 14 May, 2016 when the Defendant walked past the door of “Ching Kei”.

5.Cheung Leung-ting, a cashier at the restaurant, returned to the restaurant at 8.10 a.m. on 14 May, 2015 and found that the cash register was opened and there were signs of ransacking thereat.  A CCTV camera above the cashier counter had been turned away and the steel gate that had previously been closed was left open. A metal door between the kitchen and dining area, which had originally been tied close, was also left open.  Cash of HK$18,000 and a Sony smartphone worth HK$4,000 were found to be missing and a report made to the police.

6.CCTV footages from the restaurant and from “Ching Kei” showed the Defendant walking past the front door of “Ching Kei” and greeting the owner Mr. Cheng at about 12.34 a.m. on 14 May, 2016. The Defendant was seen shortly afterwards walking past the front door of the restaurant towards the outdoor kitchen of the restaurant.  Between 12.42 a.m. and 12.47 a.m. that day, the Defendant was captured on the CCTV footages turning a CCTV camera in the restaurant with a hand in a glove and prizing the cashier counter area with tools.

7.The Defendant was arrested on 16 May, 2016 – at the time of his arrest he had HK$4,420 in his possession.  In a subsequent video record of interview under caution, the Defendant admitted he had worked at “Ching Kei” for about 5 months 3 years previously, and during that employment, he occasionally worked at the restaurant.  He had walked past ‘Ching Kei” at about 12.30 a.m. on 14 May, 2016 and was seen by the owner Mr. Cheng.  He admitted entering the restaurant through the back door and burgled the premises – he took some cash – HK$15,000 to 16,000, and a mobile phone.   He sold the mobile phone to a second hand trader at Apliu Street in Sham Shui Po for HK$2-300.  He said that he had gambled away or spent all the cash he had stolen and the sale proceeds from the mobile phone.

8.By entering a plea of guilty to the charge and admitting the Summary of facts, the Defendant has admitted entering the restaurant as a trespasser and stealing the cash of $18,000 and the smartphone 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.

9.8 photographs of the restaurant were produced by agreement.  Photograph 3 depicted the door through which the Defendant gained entry into the premises. Photographs 5 and 6 depicted the cashier counter and the drawers in it that were prized open.

Previous Convictions

10.The Defendant has 36 previous convictions in 20 court appearances, including 9 for burglary or attempted burglary. He also has 19 dishonesty related offences. His last burglary offence was in 2013, when he was sentenced to 26 months imprisonment. His most recent offence was for shoplifting in 2015, when he was sentenced to one month’s imprisonment.

Mitigation

10. The Antecedent Statement was read into the record by the Prosecution – little issue was taken on the contents save that the Defendant did not live with his ex-wife and sons but lived with a friend. The Antecedent Statement disclosed that the Defendant was born in Hong Kong and aged 41 years and educated to Form 2. He had worked as a waiter and a decoration worker. He was married in 1998 but divorced in 2011. He had 2 sons.

11.Mr. Tso submitted that the Defendant was a casual worker before his arrest earning $3,000 a month. In September 2015, he had been involved in an industrial accident and sustained injury to his right arm which affected his working capacity.  He was also hospitalized for 2 months and still required follow-up care.  Mr. Tso sought leniency on behalf of the Defendant. He accepted that the applicable tariff was 2 ½ years’ imprisonment as a starting point for burglary of commercial premises, and also submitted that the Defendant had acted alone, and the value of the stolen property was not large. Also, he had not used any sophisticated means to gain entry into the premises, although he had prized open the drawers. Mr. Tso also submitted a number of authorities.

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 relatively not high, the Defendant committed the offence alone, the offence was committed at the time when the occupants had left the premises and little damage was caused to the premises. But there was a prizing open of the drawers of the cashier counter to steal. The Defendant also has quite a number of previous similar convictions as well as dishonesty related convictions.

14.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. Save for the plea of guilty, there is little mitigation of weight before me.   I take as a starting point 3years and 3 months’ (i.e. 39 months) imprisonment, discount this by one-third to reflect the Defendant’s plea – the Defendant is sentenced to 2 years and 2 months’ imprisonment (26 months) on the charge.