HKSAR v. Chan Tsz Leung

DCCC 639/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 639 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to a single charge of burglary of a non-domestic premises.

2.The premises are the Granville Island Hong Kong Restaurant at the Ground Floor in School Street, in Tai Hang.

3.The defendant has agreed the facts of the case, which show that on 14 March 2016, in the early morning, at 7.28 am in the morning, he was observed by police officers to be disguising himself with glasses and a surgical mask and then prising open the front door of the restaurant with a crowbar.  He then entered the restaurant after prising the front door, and by 7.40 of the same morning, he had walked out of the restaurant.  Whilst inside that restaurant, he stole the items which are particularised in the charge, which is a total of $15,000 in Hong Kong currency and an iPad.

4.The defendant was arrested at the scene.  Both the money and the iPad were recovered.  Also recovered from a Yonex bag the defendant was carrying were what are described as break‑in tools, such as crowbars, a screwdriver, Allen keys, a torch, items for disguising oneself such as a cap and surgical masks and gloves for disguising fingerprints.

5.CCTV footage of the restaurant confirms the observations made by police officers.

6.The defendant made admissions in a cautioned video‑recorded interview later which confirmed the observations of the police officers and confirmed his plea.

7.The defendant’s antecedents have also been agreed.  He is aged 46.  He has a number of criminal convictions which show a total of 11 appearances in court.  He has been convicted of a number of different offences involving dishonesty commencing in 1992, when he received a suspended sentence for obtaining by deception.  Since then he has committed offences of using false instruments and obtaining items by deception and theft.  He received substantial sentences of imprisonment, between 15 and 21 months’ imprisonment.

8.Of relevance to sentence today is what appears to be the commencement of the defendant’s career as a burglar in 2007, when he was convicted of attempted burglary and received a 20‑month sentence.  Later, in 2011, for burglary he was sentenced to 2 years; again in 2013, sentenced to 24 months; and most recently, on 1 April 2015, he received a sentence of 2 years’ imprisonment for an offence of attempted burglary.

9.The defendant is recorded, in the mitigation I have from counsel, to have been unemployed at the time of his arrest, but he has in the past worked as a casual worker in restaurants.

10.His mitigation is he comes from a poor family and has led a hard life.  His mother is old and not in employment.  They all live together in a public housing unit.

11.The defendant had received employment to work as a cook in Shenzhen with a salary of RMB8,000 per month at the time of committing the offence, but he was in urgent need of money and took this route to obtain such money.  I am told he is now remorseful and asks for leniency.

12.As far as sentence is concerned, this can be classified as a burglary of a non-domestic premises.  For a person of clear record who is convicted after trial for a non‑domestic premises burglary, a starting point of sentence of 30 months’ imprisonment should be adopted.

13.The defendant may be subject to aggravating factors in this case.  The burglary itself, defence counsel says, is small scale. Given what the defendant recovered, I think one can say that is a correct assessment; it is a small-scale burglary.  The defendant shows certain indicia of a professional burglar in the way in which he approached the burglary and also in his carrying of various equipment.

14.But the aggravating factor which I consider is appropriate to take into account in this case is the defendant’s previous convictions for burglary dating from 2007 which show a repetitive continuation of burglary through this period, especially with convictions in 2011, 2013 and 2015, showing convictions every two years for these offences. 

15.This, I think, one could categorise the defendant’s background in terms of his career as a burglar as being a failure of sentencing in the past.  Clearly the defendant has not been deterred by the sentences he received in the past, so that is a factor that the court can take into account in determining the sentence today and determining by how much the normal starting point should be increased by reason of that aggravating factor.

16.Having said that, of course, the enhancement of sentence should not be such as to put it into an entirely different sentencing category.

17.I consider that an enhancement of sentence by way of 9 months is appropriate in this case, which means there will be a starting point for sentence at 39 months’ imprisonment for this offence.

18.The defendant is entitled to a full discount for his plea of guilty.  He has admitted this matter from an early stage, certainly from his video-recorded interview.  He is entitled to a full discount of 13 months from that, which leads to a sentence of 26 months’ imprisonment in this case.