HKSAR v. Luk Tat Yin

DCCC 662/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 662 OF 2016

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REASONS FOR SENTENCE

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1.The Defendant pleaded guilty to four counts of burglary, contrary to Sections 11(1)(b) and (4) of the Theft Ordinance, Cap. 210. The Defendant has a hearing problem, and a hearing aid was provided to him throughout the proceedings. I was satisfied that he could hear and understand the entire proceedings.

Summary of Facts

2.The burgled premises herein in respect of all four counts of burglary is at ground floor, No. 113 Shanghai Street, Yau Ma Tei (the ‘premises’).  This is the Sun Keung Kee Restaurant, commercial premises (the ‘restaurant’).  On 3 separate occasions, i.e. on 29 April, 2016, 2 May, 2016 and 4 May, 2016, petty cash had been lost from the petty cash cabinet after the close of business, $1,300 on each occasion, totaling $3,900 (Counts 1 – 3).  The key to the petty cash cabinet was kept by one of the owners of the restaurant.

3.At about 3.47 a.m. on 5 May, 2016, police officers conducting an anti-burglary operation near the restaurant after the restaurant had closed and had been locked saw the Defendant using a flashlight and entering the rear lane behind the restaurant, climbing up the ventilation pipe and entering the restaurant. The police officers immediately entered the restaurant from the front and stopped the Defendant inside the premises.  A body search was conducted on the Defendant and a key was found on him. He was arrested and cautioned, and under caution admitted climbing into the restaurant via the rear lane with the intention of stealing petty cash. He asked for a chance as he had been caught before anything had been stolen (Count 4).  In subsequent records of interview under caution, he admitted to committing Counts 1 to 3 by entering the restaurant from the rear lane.

4.In a subsequent video record of interview under caution, he admitted trespassing into the restaurant intending to steal petty cash.  He used a hole in the rear lane behind the restaurant to climb into the restaurant. He knew where the petty cash was kept as he regularly ate at the restaurant and he had previously performed water and electric repairs for the restaurant. The key that had been found on him was for opening the locked petty cash cabinet – he had picked it up at the restaurant the previous month while doing repairs at the restaurant. He had spent all the money he had previously stolen. 

5.I was satisfied beyond all reasonable doubt that the facts admitted by the Defendant supported the charges and accordingly I convicted the Defendant on the charges.

Previous Convictions

6.The Defendant has 1 previous conviction for theft in 1994 when he was sentenced to 6 months’ imprisonment suspended for 18 months.  This was over 20 years ago, and for the purposes of sentence in the present proceedings, I shall attach no weight to this previous conviction.

Mitigation

7.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 50 years and educated to primary level in Hong Kong. He was self-employed at the time of his arrest.  He was married, but lived alone in Hong Kong. His family lived in China.

8.Ms. Ngai for the Defendant submitted her mitigation in writing.  She submitted that the Defendant was a self-employed decoration worker with a small scale business and he earned about $6,000 each month. A customer had failed to pay the outstanding balance for a decoration job. He owed wages to 3 of his workers who were pressing him for payment – they had become quite hostile.  The Defendant stole in order to pay his workers.  She submitted that the Defendant was remorseful as reflected by his plea. She also submitted letters in mitigation from the Defendant and from his siblings seeking leniency on behalf of the Defendant.  She submitted that the Defendant had been co-operative throughout, and he had admitted to Counts 1 to 3 on his own volition.  He was not a professional burglar but an opportunistic one. No equipment was used to gain access to the premises and no damage was caused. He acted alone and no one was alarmed or injured. He had learned a lesson from being remanded since his arrest.  He suffered a hearing problem which had hindered his learning ability, social skills and adaptability throughout his life.  Counsel also submitted a number of authorities.  The total loss of the restaurant was $3,900, which the Defendant was prepared to compensate to the restaurant.  I ordered that this be paid, and I am told that this has been done.

9.After hearing Counsel in mitigation, I adjourned sentence until today, calling for a Background Report and a Medical Report on the Defendant, which are now before me.  I am informed by Counsel that the Defendant agrees with the contents of both reports.

Sentencing Considerations

10.In determining sentence, I have borne in mind all that has been urged upon me by Counsel on behalf of the Defendant, as well as the authorities submitted, and the contents of the letters in mitigation and the reports I had called for.

11.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 1/2 years’ imprisonment.

12.In the present case, I find there were no aggravating features in the commission of the offences in that the value of the stolen property is not high and the Defendant committed the offence alone.The burglaries took place at night when the restaurant was closed and the premises were not occupied - there was little possibility of confrontation with any occupier. No equipment was used to gain access to the premises, and no damage was caused to the premises.

13.The 4 burglaries were committed by the Defendant within a period of 7 days. This must be considered an aggravating feature.

14.Counsel submitted that these were opportunistic offences.  The Defendant returned on 4 occasions to burgle the same premises. He was familiar with the restaurant as he had eaten there in the past and had done repairs for the restaurant as well.  He used a key he had picked up when he was doing repairs at the restaurant to access the petty cash cabinet.  I do not find that the Defendant was an opportunistic burglar.

15.The Defendant has repaid the victimized restaurant’s losses.  It is well settled that this can amount to mitigation, particularly when coupled with a plea of guilty (see HKSAR v. Leung Shuk Man [2002] 3 HKC 424 and HKSAR v. Cheung Suet Ting [2010] 6 HKC 249).  Some of his siblings and their spouses have also been in court to show their support of the Defendant.

16.The Defendant, prior to his arrest, did work as a decoration worker earning $6,000 a month. He is married, although the Probation Officer who interviewed his family members to prepare the Background Report informs me that his family has never met his wife who lives in China.  The Defendant expresses his remorse to the Probation Officer, saying he had offended because he needed money to pay the wages of his coworkers and had not thought of the serious consequences, and claimed he had gained insight by his present remand.  The Medical Report discloses nothing remarkable in the Defendant’s health condition, save that he has ‘left hearing loss’ but no follow-up was indicated.  He has had a hearing problem since his childhood.

17.I take the view that the imposition of the normal starting point of 2 1/2 years’ imprisonment for this kind of burglary would be somewhat harsh on the Defendant.  However, I do bear in mind that the offences here are offences of ‘burglary’ and an immediate custodial sentence is the only appropriate sentence in the circumstances of the offence and the Defendant.  The tariff is not a ‘straightjacket’ and can be departed from in certain circumstances.

18.There is no overlooking the fact that what he did was serious. I am satisfied that an overall sentence for all 4 charges should be that of 2 years’ imprisonment. After considering the facts of the case, the mitigation including the Defendant’s hearing loss, the value of the stolen property (and I note that the restaurant has been compensated in full for its loss), I am satisfied that a lower starting point would be appropriate.  I would take as a starting point 2 years’ imprisonment on each charge, discount this by 3 months to reflect that the victim has been fully repaid in respect of Counts 1 to 3 and that the victim restaurant suffered no loss in respect of Count 4, discount this by one-third to reflect the Defendant’s pleas, and sentence the Defendant to 1 year and 2 months’ (14 months’) imprisonment on each charge.  I shall order that the sentences on Counts 1 to 3 be served concurrently, and 4 months’ of the sentence on Count 4 be served concurrently with that of Counts 1 to 3, and 10 months’ be served consecutively.  So the total sentence is one of 2 years’ imprisonment.