HKSAR v. Chan Ho Fai

DCCC 1001/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1001 OF 2016

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.The defendant has pleaded guilty in this case of one charge of burglary.

2.The burglary occurred at a Japanese restaurant in Tseung Kwan O.  The facts the defendant has agreed say that the burglary occurred between 11 o’clock on the evening of 6 September and 11 o’clock in the morning of 7 September, and that occurred because the manager discovered various items missing from the restaurant.  These were mainly foodstuffs:  two kilos of beef, four shrimps, four scallops, and 3,800 millilitres of beer.  There were also two cups and one pot.  The cups and pot, I understand, are low-value items, but the total value of the foodstuffs and the other items was $1,360.

3.The CCTV recording showed it was the defendant who had done this, who had removed these items.  He had done that by entering the restaurant in the early hours of 7 September, took some keys from the cashier, and went towards the kitchen.  We know that he had then gone and consumed the food that has gone missing, and also apparently drunk the beer. The defendant later left the restaurant after returning the keys.

4.The defendant was recognised on CCTV footage because he had worked in the restaurant from November 2013 and had been laid off about two weeks earlier.

5.In the video-recorded interview, the defendant said he had gone to the restaurant to look for personal belongings which he had left there.  He had then consumed some beef and a glass of beer.

6.Those are the facts that are agreed.  They do constitute a burglary.

7.The defendant has two previous convictions in 2012 and 2015.  They are both for theft.  He has been put on probation for 12 months, and then, later in 2015, 180 hours’ community service.  So the defendant does have an unfortunate record of offences of dishonesty, and I believe one could attribute his offences in this case to a lack of real understanding of the legal consequences of his actions.

8.As far as his personal circumstances are concerned, besides his previous convictions, he is aged 25.  He has been educated to I think it is Form 4.  He has completed a certificate in food and beverage service at the vocational training institute, and also completed a course of education at the Li Ka Institute of the open university, and in particular basic food hygiene certificate for hygiene managers.

9.So the defendant is a person who has an interest in working in the food and beverage area, so he has a trade and a skill.  He has worked at various restaurants, particularly in the restaurant that the burglary charge relates to.

10.The defendant appeared to have a somewhat poor working record and was dismissed due to frequent lateness.  The defendant has been out of work since he was charged with this offence.

11.I obtained a background report on the defendant.  He attributed his lateness and being fired by the restaurant to the working hours.  He had long working hours and was often very tired.  But he still retains his interest in the field of food and beverage service, and would like to resume working in that field.

12.He admits he went into the restaurant and cooked the food and consumed the beef in question.  The defendant, according to the report, understands his legal responsibility now, and has had self-reflection during the remand period.  He is sorry for causing the loss in question.

13.It is clear the defendant’s offending in this case can be attributed to his impulsiveness and his lack of understanding of what the legal consequences of his acts are.

14.Now turning to the question of sentence, the defendant has been convicted here, by his own plea, of a burglary.  A burglary is a serious offence.  It involves the invasion of premises.  But the facts of burglary can constitute many different kinds of ways in which the offence can be committed.  The offence of burglary is taken seriously by the courts, and there are guideline sentences for people who commit this offence.

15.These premises are a non-domestic premises, and the guideline sentence is that for a person of clear record convicted after trial of this offence can expect to receive a starting point for sentence of 30 months’ imprisonment.

16.The defendant here is not a person of clear record.  He has got previous offences of dishonesty.  It could be said he needs to be deterred from committing further offences of dishonesty.  But whatever the defendant has done in the past, he has not committed a burglary in the past, so I do not consider his previous convictions an aggravating factor in this offence.

17.However, as I have said earlier, the guideline sentence covers all ranges of burglaries, which would include professional type burglaries, where damage is caused to the premises which are entered into and items of great value are taken.

18.What we have here can be seen as a foolish act. The defendant, on the face of it, gained entry to the premises because he used to work there.  He knew where the key was, so he could get in without causing any problems.  He took items by, on the face of it, eating them, except for a couple of wine cups and a silver pot of minimal value.

19.So as I have said earlier, this is not the run of the mill burglary case.  The defendant knew the premises; he had worked there; he caused no damage to the premises.  The gravamen of the offence lies in the value of the items he took, and I understand his family is prepared to compensate the restaurant for the loss.

20.Courts have acknowledged that burglary covers a wide range of circumstances, and the starting point for the guideline sentence might not be the correct starting point in every case.  Lower starting points have been adopted in what are described as opportunistic burglaries, or walk-in burglaries.

21.This is neither of those kind of burglaries. The defendant knew he could go there and take items, because he had previously worked there.  To a certain extent, there is an element of breach of trust in that.

22.However, it appears to me the defendant has learnt his lesson.  He appears remorseful.  He has a skill he can pursue once his sentence of imprisonment is finished.

23.I consider, taking all these factors into account, that some reduction from the normal guideline sentence is appropriate for this defendant.  He has acted foolishly, and perhaps he deserves a chance.

24.What I shall do is adopt a starting point for sentence in this case of 18 months’ imprisonment.  The defendant has indicated a plea from an early stage.  He is entitled to a one‑third discount for that.

25.The final sentence will be one of 12 months’ imprisonment.

COURT: Did we do the exhibits last time?

MR CHOI: No, that is the application now, your Honour.

COURT: Also there is a compensation order. I can make this by way of an order today.

MISS CHAN: Yes. Yes, they can pay it today into court.

COURT: It’s 1,260, isn’t it?

MISS CHAN: 1,360.

COURT: 1,360. If that can be paid today, 1,360...

MISS CHAN: Yes.

COURT: ...to -- I’ll just put “the victim”.

MR CHOI: All right, yes.

COURT: I think that will cover -- the victim, I think, is named in -- or are they named?

MR CHOI: Well, technically, it should be the restaurant, but I...

COURT: It should be the restaurant, shouldn’t it; yes. But we don’t -- is that a company that it could be paid to? I’ve got the name of the restaurant, but it doesn’t say what the legal name for that entity is.

MR CHOI: Well, perhaps it’s -- we don’t know exactly what the entity is.

COURT: We don’t.

MR CHOI: But the manager is going to come here and collect the cheque.

COURT: All right. I’ll just leave it as “victim”. If we need any further elucidation you can always bring it back for liberty to apply to extend that order.

MR CHOI: All right.

COURT: All right. Anything about the exhibit disposal application?

MISS CHAN: Agreed.

MR CHOI: Agreed, yes.

COURT: Agreed, all right. Order in terms in respect of prosecution’s application for disposal of exhibits. If there’s nothing else, we’ll stand down. Thank you.

MR CHOI: I’m grateful.

MISS CHAN: Thank you, your Honour.