HKSAR v. Ma Chak Kin

DCCC 550/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 550 OF 2017

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REASONS FOR SENTENCE

The defendant pleaded guilty to 2 charges of "Burglary". He burgled a bar located at Kwun Tong twice within 2 days. At the time of the offences, he was a former employee of that bar.

Summary of Facts

2.Mr. SHEK (PW1) was the manager of "Bar Pacific" situated at Luen On Street, Kwun Tong ("the Bar").  In the beginning of March 2017, PW1 hired the defendant as a bartender.  The defendant was given the key to the metal gate of the Bar ("the Key").  He was informed that he had to return the Key to PW1 upon leaving employment and that he could not return to the Bar outside business hours.

3.The defendant resigned from his post on 5 April 2017 by phone and PW1 requested him to return the Key.  The defendant claimed that he was occupied with family matters and could not return the Key immediately.  PW1 then reminded him that he could not return to the Bar outside business hours.  Subsequently, PW1 was no longer able to reach the defendant.

Charge 1

4.About 4:00 a.m. on 16 April 2017, PW1 counted the cash, locked up and left the Bar.  About 4:30 p.m. on the same day, he returned to the Bar and found the cash being $1,191 short.  PW1 asked the staff members of the Bar but no one knew anything about the missing cash.  Hence, PW1 requested for CCTV footage from the head office. PW1 did not alert the Police whilst waiting for the CCTV footage.

Charge 2

5.About 4:00 a.m. on 18 April 2017, PW1 counted the cash, locked up and left the Bar.  About 4:30 p.m. on the same day, PW1 returned to the Bar and found the cash being $1,844 short.  PW1 asked the staff members of the Bar but no one knew anything about the missing cash.  Hence, PW1 requested for CCTV footage from the head office again.

Arrest & Admissions

6.On 19 April 2017, PW1 received the CCTV footage.  After viewing the footage, he discovered that it was the defendant who took the cash on both occasions.  PW1 then reported the matter to the Police.

7.The Police arrested the defendant on 20 April 2017.  Under caution, he admitted that he committed both offences out of greed.  In his video recorded interview, the defendant admitted in more details how he burgled the Bar on 16 and 18 April 2017.

Mitigation & Sentence

8.The defendant is 26 and single. He has 2 conviction records, which involved a "Robbery" offence and a "Theft" offence. He was given a Probation Order on each occasion[1]. Defence solicitor Mr. SIT informed me that the defendant is a F.5 graduate and has been working as a bartender for more than 2 years.

9.In mitigation, Mr. SIT submitted that the defendant was short of cash at the time of the offences. He was foolish and offers his apologies to the Bar. Mr. SIT further submitted that the defendant has unpaid wages in the sum of $3,000 odd due from the Bar. The defendant's father suffers from prostate and bladder cancer. Letters written by the defendant and his father were placed before me; their contents are duly noted.

10.The normal starting point for non-domestic burglary is 2.5 years' imprisonment. The defendant is no stranger to theft-related offences. Committing a series of burglaries against the same premises within 2 days can be regarded as an aggravating factor[2] as well. A breach of trust element is clearly involved, which is the 3^rd aggravating factor.

11.After due consideration, I have decided to raise the starting point to 33 months for each charge. With the guilty plea, the sentence is reduced to 22 months. Apart from this, I see no other mitigating factors which warrant any further reduction. The sentence for each charge is 22 months' imprisonment.

12.Bearing in mind the totality principle, I consider a global starting point of 39 months to be appropriate for both charges. With the guilty pleas, the overall sentence is reduced to 26 months. Hence, I order 4 months in Charge 2 to run consecutive to the sentence of Charge 1.