HKSAR v. Yip Chung Cheong

DCCC 414/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 414 OF 2017

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REASONS FOR SENTENCE

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1.The defendant was charged with one count of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.The defendant pleaded guilty and admitted the facts, he was convicted accordingly.

Summary of facts

3.In the small hours of 28 February 2017, police officers of an anti-burglary operation set up a surveillance post at the podium situated on the 2^nd floor of Sai Kung Market.  At about 1:23am, the defendant was seen entering the alley of the victim restaurant and reappeared with the stolen goods, ie about 6 kilogrammes of beef containing in 3 plastic bags.

4.The defendant was intercepted by Police.  Upon enquiries, the defendant told the Police that he had climbed into the roofed podium of the restaurant via the iron fencing thereof and stole beef from the restaurant thereafter.  He stated that he had also tried to cut open the lock of the metal gate of the restaurant to gain into the restaurant but was unsuccessful.

5.The defendant was arrested for burglary.  Under caution, the defendant stated that he was hungry and so he had entered the restaurant and stolen the beef for his own consumption.  At a later cautioned interview, the defendant admitted he made use of the scissors found on top of the refrigerator to cut open the lock of the metal gate and used the gloves on top of one of the refrigerator to commit the offence.

6.The manager of the restaurant confirmed part of the iron fencing of the roofed podium of the restaurant had been damaged (the repairing cost being $100) and the lock of the metal gate of the restaurant had also been prized and damaged (the repair cost being $100).  The value of the beef missing from the refrigerator placed near the iron fencing was about $1,000 and been returned to the victim restaurant.

Mitigation

7.The defendant aged 31, single with stable employment and supporting family.  He has two previous criminal record, one of which is a theft back in 2006 and he was sentenced for 120 hours of community services, the other is a gambling offence and fined for $2,000 in 2013.

8.The work place of the defendant was near the victim restaurant, that morning after work, he had a few drink with his colleagues, and went into the alley in response to a call of nature, there he found the entrance leading to the podium of the victim restaurant and thereafter things happened as what the facts disclosed.  He was only an opportunistic burglar, all the scissors and gloves were there inside, having failed to cut open the metal lock he did not force entry but stole whatever he found.  He is willing to compensate the repairing costs to damages caused by him.

9.After the incident he has quitted his job, to avoid any embarrassment caused to his employer as the two shops were close to each other.  He was highly praised by his last and current employers both written mitigation letter for him.

10.Defendant has kidney illness and on long term medication.  Further he has undertaken surgery to his hip, he has difficulty in walking and is still receiving therapy on it.

11.The defendant has pleaded guilty, he felt very sorry and regretted for his wrong.  The defence urged the court for leniency.

Sentence

12.The starting point for burglary of non-domestic premises is 2.5 years’ imprisonment.  The defence referred me to the case of Sim Ka Wing CACC 450/2000 that for the starting point of 2.5 years a degree of premeditation and planning is already built into the conventional starting-point.  The conventional starting-point can be lowered in the case of the opportunistic burglar.

13.The defendant damaged the iron fencing of the roofed podium, and entered into the podium of the restaurant, further attempted to cut open the lock of the metal gate of the restaurant to gain access into the restaurant without success, then stole the beef from one of the refrigerator placed near the iron fencing.  The defendant made use of the scissors and gloves placed on top the refrigerator to commit the crime but he did not force open to enter the restaurant premises.  I accept the defendant can be taken as an opportunistic burglar and he offered to compensate the damages caused.  I consider a starting point of 2 years would be appropriate in the present circumstances.

14.The defendant pleaded guilty at the earliest opportunity, he is entitled to the full 1/3 discount.

15.The defendant was co-operative since his apprehension.  Though the defendant has a theft conviction in 2006, having consider the comment from his employers, I am with the view that the defendant was probably under influence of alcohol and made a misjudgment at the material time, for this I allow him a further deduction of 2 months.

Order

16.The defendant is sentenced to 14 months’ imprisonment.

17.And compensate the victim restaurant $200 deducted from the defendant’s bail with consent.

18.The CSD be informed that the defendant is suffering from kidney illness and on long term medication, his medical record is with the Kwong Wah Hospital.