HKSAR v. Fung Wai Kei

DCCC 1016/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1016 OF 2016

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REASONS FOR SENTENCE

1.Fung Wai Kei you have pleaded guilty to one charge of burglary, contrary to section 11 of the Theft Ordinance[1] .

2.Full particulars of the offence are set out in the facts admitted by you on 1 February and 22 February 2017.  In summary on 13 July last year you went to the Ho Wan Game Centre on Ta Chuen Ping Street, Kwai Chung.  Just before midnight when the Game Centre was closing, instead of leaving you hid behind one of the game machines.  After the Game Centre was closed you wandered around inside the Game Centre, moved the CCTV cameras and checked out the coins-boxes of the game machines. 

3.Around 1:30 a.m.  you were discovered inside the Game Centre.  You claimed you had fallen asleep and made good your escape.  A search of the Game Centre revealed that the cashier drawer had been unlocked and $54,100 was missing.  Four CCTV cameras had been moved with the internet wire connecting the CCTV unplugged.

4.A report was made to the police who arrived and searched the Game Centre.  The missing money was found inside the coin box of a game machine, which had been prized open.  

5.At about the same time you called 999 explaining you had fallen asleep and that your phone had run out of battery therefore you could not report that you were locked inside.  The police officers attending the Game Centre called you and you agreed to return to the Game Centre. 

6.You were subsequently arrested outside the Game Centre.  Under caution and in a subsequent video interview you again claimed to have fallen asleep and that you moved the money because you were angry at being locked inside the Game Centre.

Mitigation

7.In passing sentence, I have carefully considered everything said on your behalf by Mr Chan and Ms Lee together with the content of the background report.  Although you have a long record, I take into account your only conviction for dishonesty was in 1992 and that between 1998 and 2015 you managed to stay out of trouble.

8.Ms Lee told the court that your stealing was a moment of greed.  Ms Lee explained that whilst in the Game Centre you decided to steal the money and therefore hid behind one of the machines.   After the Game Centre was closed you emerged from behind the machine and looked around the Game Centre.  You eventually entered the cashier room and stole the money, which you say you placed on the table of one of the machines. 

9.Soon after, you say you realised you were wrong and having a change of heart decided to return the money.  You were unable to put the money back in the cashier room because the door was locked and therefore put the money in one of the coin boxes.

10.You also say you moved the CCTV cameras so you could attract the attention of anyone looking so they would come and let you out of the Game Centre. 

11.This explanation is not only different to what you told the police that you fell asleep and moved the money because you were angry at being locked inside the Game Centre, the CCTV footage also shows you did not enter the cashier room before moving the CCTV camera.

12.Mr Chau has prepared a very helpful table detailing what each camera shows.  I have also had the opportunity of viewing the CCTV footage.  In particular, I have viewed camera 3, which shows the cashier room.  You are seen moving the CCTV camera after which the cashier room can no longer be captured on camera.  At no time prior to moving the camera were you seen entering the cashier room. 

13.Further the CCTV footage as a whole show that at no time did you fall asleep in the Game Centre and were therefore locked inside by mistake.    

14.I do not accept this was a moment of greed.  Your act in hiding behind the machine and moving the CCTV cameras were clearly deliberate. As indicated in court I do not accept your mitigation that after stealing the money you had a change of heart.  As is your right you have elected not to give evidence to support your mitigation. 

Sentence

15.The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months imprisonment. 

16.Ms Lee submits that credit should be given for your cooperation with the police.  In particular Ms Lee relies on your calling 999 which enabled the police at the Game Centre to contact you and subsequently arrest you.

17.Whilst returning to the Game Centre may have made the police investigation easier again, as indicated in court, I do not accept you called the police out of a sense of remorse.   Clearly you knew you may have been seen on CCTV prior to moving the cameras from which you may be identified and that the staff of the Game Centre who allowed you to leave may have been able to identify you. 

18.When you left the premises you said you had fallen asleep, which explanation you repeated in the 999 call and under caution.  As pointed out already the CCTV footage shows you did not fall asleep in the Game Centre. 

19.In HKSAR v Ma Ming[2] the Court of Appeal held that the fact that a frank confession provides the only evidence which supports the charge did not entitle the defendant to a further discount over and above the one-third discount.  The Court of Appeal in HKSAR v Ngo Van Nam[3] reaffirmed the position that a judge was not obliged to give a discount over and above the one-third discount explaining that the mitigating factor of a confession was subsumed within the one-third discount.   

20.I am satisfied that no discount over and above the one-third discount is to be given for your calling 999 and then agreeing to return to the Game Centre.  I am satisfied that the fact you left the money hidden in a different part of the Game Centre, which the police found during a search of the Game Centre, also does not entitle you to further discount over and above the one-third discount.

21.Giving you full credit for your plea of guilty you are convicted and sentenced to 1 year and 8 months imprisonment. 

Suspended sentence

22.On 20 April 2015 in the Tsuen Wan Magistracy, for an offence of common assault on your wife, you received a sentence of 2 weeks imprisonment suspended for 18 months.

23.The commission of the burglary places you in breach of that suspended sentence. Section 109C of the Criminal Procedure Ordinance[4] provides that unless the court is of the opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was passed, including the facts of the subsequent offence, shall order the suspended sentence take effect with the original term unaltered. 

24.Notwithstanding the different nature of the offence and that at the time of the burglary there was only three months of the suspended period remaining, which period has now expired, I find nothing unjust in activating the suspended sentence. 

25.The suspended sentence is activated with the original term unaltered.  This is separate and distinct from the burglary.  I am satisfied a wholly consecutive sentence is appropriate making a total sentence to be served by you of 1 year and 8 months and 14 days, which I am satisfied properly reflects your criminal culpability.