HKSAR v. Kwong Tsz Chun

DCCC 862/2017

[2018] HKDC 186

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 862 OF 2017

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REASONS FOR SENTENCE

1.Kwong Tsz Chun you have pleaded guilty to two charges of burglary, contrary to section 11 of the Theft Ordinance[1].

2.Full particulars of the offences are set out in the facts admitted by you today.  In summary in July last year you were employed as a driver by the Luen Fat Vegetable Laan Limited, a vegetable wholesale supplier who operated from Shop B192 in the Cheung Sha Wan Wholesale Food Market.

3.The shop opened between 6 a.m. and 3 p.m. everyday.  At 3 p.m.  the wooden door of the office would be locked with a key to the door placed under a flowerpot next to the door. 

4.On 10 July you sent a WhatsApp message to the manager saying you had stomach ache and could not go to work.  Later the same day the accounting staff discovered that $14,450 was missing from the office. 

5.CCTV installed in the office showed that at around 4:53 p.m. on 9 July you entered the office and took away the money from the drawers inside the office. 

6.The manager believing you had used the key underneath the flowerpot removed the key.  The manager however did not immediately report the matter to the police as he hoped you would return the money.  You did not however return to work.  

7.On 14 July the manager discovered the wooden door to the office had been damaged[2].  The CCTV showed that at around 2:11 that morning you damaged the door; entered the office and took away around $10,000 from the drawers. 

8.You were arrested later the same day.  Under caution and in a subsequent video recorded interview you admitted, inter alia, entering the office on 9 July with a key placed near the flowerpot and taking the money and on 14 July damaging the door of the office and taking the money.

Mitigation

9.In passing sentence, I have carefully considered everything said on your behalf by Mr Lam together with your mitigation letter and the letter written by your grandparents which details your upbringing, including your addiction to drugs. 

10.Mr Lam says you committed the offences because of debt and that you are unable to compensate your employer.   

Starting point

11.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.

Aggravating features

12.Mr Lam refers the court to HKSAR v Cheng Wai Kai where the Court of Appeal stated the starting point can be adjusted upwards if there are aggravating circumstances and listed six such aggravating circumstances[3].  Although you have convictions for theft in 2011 and there are two offences, I am satisfied that the starting point is not to be enhanced by reason of your previous convictions or that there are two offences.  I accept the other aggravating features referred to in HKSAR v Cheng Wai Kai are absent. 

13.You were however employed at the time of the first burglary and used your knowledge of the presence of the key to enter the office to steal money on 9 July.  You no doubt returned on 14 July in the belief the key would still be there.  On finding no key you damaged the door to enter the office. 

14.In HKSAR v Sim Ka Wing the Court of Appeal said that a modest enhancement was appropriate where the offence involved the use of knowledge about the burgled premises acquired while working there[4].

15.I am satisfied a lower starting point is appropriate for the first burglary which is not the usual type of burglary that comes before the court attracting a starting point of 2 years and 6 months’ imprisonment.  Taking into account that you used your knowledge of the presence of a key to enter the office, I am satisfied a starting point of 1 year and 9 months’ imprisonment is appropriate. 

16.The same cannot however be said of the second burglary where you broke into the office.  I am satisfied a starting point of 2 years and 6 months’ imprisonment is appropriate which I enhance by 3 months to 2 years and 9 months’ imprisonment by reason of your use of knowledge gained while employed by the shop.

17.Giving you full credit for your pleas of guilty reduces the sentence on charge 1 to 1 year and 2 months’ imprisonment and on charge 2 to 1 year and 10 months’ imprisonment.

Totality

18.I am satisfied a total sentence of 2 yearsimprisonment properly reflects your overall criminal culpability on the two charges and takes into account your personal circumstances and the seriousness of the offences[5].  

Sentence

19.You are convicted and sentenced as follows:

Charge 1 – 1 year and 2 months’ imprisonment with 2 months consecutive and 12 months concurrent to charge 2; and

Charge 2 – 1 year and 10 months’ imprisonment.