HKSAR v. Chu Ming Yan

DCCC 1141/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1141 OF 2016

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Reasons for Sentence

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1.The defendant has pleaded guilty to a single charge of a non-domestic premises burglary occurring on 13 October 2016 at a canteen unit in the Metro Centre of Kowloon Bay where the defendant stole some $444 of change from a till.

2.The facts have been agreed by the defendant. They show the defendant in fact had been employed to renovate the restaurant, a restaurant at 106, Prince Edward Road, and at that location there was the A1 Canteen at B6, Shop 2 in the Metro Centre. 

3.On 12 October 2016 some money totalled $444 worth of coins were left in the cash register in the canteen, the cash register was not locked but the gate was closed.

4.On the next morning the defendant went to the location and had received a key to the rolling gate of the workplace. 

5.The defendant admits that he entered the premises and took the money.  In the process of leaving the premises, the defendant’s mobile phone dropped on to the floor and it was through investigation through the mobile phone that the defendant was eventually located.

6.The items that had been stolen were a reusable shopping bag, a till and $444 worth of coins in the cash register.   All these items were found in a flowerbed outside and had been abandoned by the defendant.

7.In essence, it is the case as against the defendant and admitted by him.

8.All stolen items were recovered.

9.The defendant’s antecedents show that he is aged 43.  He has a total of 22 previous appearances in court but 10 convictions for dishonesty and four previous convictions of burglary.  The recent of those convictions was on August of 2014 where he received a sentence of 2 years’ imprisonment.  He has other convictions related in 2007 and 2004 which he also received sentences of imprisonment.  

10.The defendant is currently in custody following a sentence of 10 months’ imprisonment for handling stolen goods on 11 November 2016.

11.The defendant’s mitigation put forward is that the defendant has, firstly, obviously pleaded guilty; secondly, he has shown remorse.  And the third point put on his behalf is that the prosecution advancing the case against the defendant would have to rely primarily on the CCTV recordings which do show a man that the defendant now admits it’s him entering the premises and appearing to open and take things from the cash register and then leave the premises.

12.But defence says it is not completely clear from the recording that it is the defendant.   The defendant cannot be identified from the recording.  The defendant could only be identified properly from the fact that his mobile phone was dropped outside the premises.  And that the defendant has shown remorse by pleading guilty to this offence and not challenging the facts by admitting that he had in fact trespassed into the kitchen and opened the cash register inside the canteen and that the mobile phone found belonged to him and so that the inference may have been more difficult to draw without those admissions.

13.This shows that the defendant has shown remorse otherwise the defendant’s mitigation is that he is a single man, aged 43, prior to his getting into custody, lived alone in a cubicle in Sham Shui Po.  He had prior to his conviction been a decoration worker. 

14.Also it is said on his behalf that the offence was described as a moment of greed and it is not a pre-planned offence.  The defendant had after taking the items dropped the coins into the flowerbed outside the canteen and returned home. 

15.There was no prising of the gate; he used a key to enter.  There was no ransacking or damaging, and the amount stolen was in fact quite small. 

16.I have considered all these matters when determining the starting point for sentence.  In determining the starting point for sentence, of course the offence of non-domestic premises burglary is covered by guideline sentences.  A person of clear record convicted after trial for an offence of non-domestic premises burglary can expect a starting point for sentence of 30 months’ imprisonment.  So that would be the normal starting point in this case. 

17.I must consider whether there are any aggravating factors to increase that sentence and any mitigating factors that would reduce that sentence.  In my view, both aggravating and mitigating factors exist here and I think, in essence, they cancel each other out. 

18.The aggravating factor is the defendant’s previous convictions for burglary.  He has a number of previous convictions of burglary, being convicted as recently as 2014 and receiving a sentence of 2 years’ imprisonment.  Clearly, the defendant has a poor record for both burglary and dishonesty, and previous sentences of imprisonment have not worked to deter him from committing this offence.  So in the normal course of events, that is a clear aggravating factor that will lead to an increase in the starting point of 6 months’ imprisonment. 

19.As against that, I have the point made by the defence that the defendant has been co-operative both in these proceedings by the further admissions he has made that have allowed the inference to be clearly drawn that he is the offender in question, and the defendant has to a certain extent assisted in proving the case against him by admitting he is the person depicted in the CCTV recordings, and that in the ordinary course of events can also lead to a reduction of the starting point.

20.I take the view that the two factors cancel one another out leading to a starting point in this case of 30 months’ imprisonment.  Defendant has pleaded guilty, he is entitled to a one-third discount in this matter.  I think as always indicated, as I understand it, a plea of guilty, so after deduction, a plea of guilty is factored in, the final sentence of imprisonment will be one of 20 months’ imprisonment.  That sentence will of course run consecutively to his existing sentence of imprisonment.