HKSAR v. Chan Tak Sing

DCCC 1118/2017

[2018] HKDC 459

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1118 OF 2017

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REASONS FOR SENTENCE

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1.Defendant Chan Tak Sing pleaded guilty before me to one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. The particulars are that Chan Tak Sing, on the 25^th day of April, 2016, in Hong Kong, having entered as a trespasser part of a building known as “Jade Garden”, Shop No F20, Telford Plaza I, No 33 Wai Yip Street, Kowloon Bay, Kowloon, stole therein two bags, two glasses, 4 bank books, 18 cash vouchers, one key bag with about 15 keys, cash of about $30 Hong Kong currency and cash of Y1,000 Renminbi.

Admitted facts

2.The facts admitted by Mr Chan may be summarized as follows.

3.In early April 2016, Mr Chan was dismissed as an employee of the restaurant subject of the charge.  There was a locker room for staff members which was secured by a door with lock.  However, Mr Chan had not returned the key to the lock after his dismissal.

4.A burglary took place in the early morning of 25 April 2016.  CCTV shows that Mr Chan enter the premises via the backdoor.  He held an opened umbrella before entry and closed it after entry.  Similarly, when he left after 3 minutes, he opened the umbrella.  Mr Chan’s movement in the vicinity was also captured by CCTV.

5.The stolen property from two different lockers installed in the locker room are listed in the particulars of offence.  The two lockers had previously been secured by padlocks.  One padlock was found to have prizing marks on it while the other was simply found to be unlocked.

6.In the evening of the same day, Police arrested Mr Chan outside his residence.  Under caution, Mr Chan claimed that he wanted to take something inside, but he could not open the lock and left.  Upon further questioning, Mr Chan clarified that he was looking for something inside his locker in the changing room, but he could not open the locker as the lock was changed by others.

7.House search recovered three Maxim’s cash vouchers.

8.Police went back to the subject premises with Mr Chan and opened his previous locker with his key.  A wooden box containing three pens, a packet of tissues, a shaver, a pack of nuts, three pieces of adhesive bandage, a salary statement and a wallet was seized.

9.During a VRI, Mr Chan stated that:-

(a) He went to the locker room of the restaurant with a view to finding something valuable;

(b) He found nothing valuable and left;

(c) He did not touch anything upon entering;

(d) He opened the umbrella as he did not want to be captured by the CCTV there;

(e) He left the umbrella at the open carpark of Telford Plaza;

(f) He did not return the key of the locker room, as he thought that there might still be some valuables;

(g) The Maxim’s cash vouchers were given to him by his friends about a year ago;

(h) The personal items seized from his locker were stored there by him; the salary statement was the valuable thing he was looking for; and

(i) He tried to open the lock but he could not do so, so he left.

10.Mr Chan now admits that he entered the restaurant as a trespasser and stole from the two lockers the said stolen property.

Criminal records

11.The agreed criminal record shows Mr Chan having 10 items of record two of which were breaches of CSO imposed originally for two items of shoplifting. The said two shoplifting were originally dealt with on 19 September 2016 only to be followed by re-sentencing 4 days later (because of the breaches) together with the sentencing of a third shoplifting matter: together they attracted a cumulative sentence of 9 months’ imprisonment.

12.After release, Mr Chan further committed two other shoplifting in April and October 2017 respectively for which he was given short sentences.

Antecedents

13.The antecedents statement is agreed save on one aspect: Mr Chan is not single but is divorced.  The statement shows that Mr Chan is 46 years old (44 at the time of the offence); he completed F3 education.  Between 2014 and March 2016, he worked as a chef at the subject restaurant.  He was unemployed at the time of the offence.

Mitigation

14.Mr Lam Yau Yee, solicitor of Chung & Kwan, mitigated on behalf of Mr Chan.

15.The following is a summary of the mitigation submissions.

16.Mr Chan became divorced in 2007 and lived together with his two children (son aged 22, daughter aged 15, both studying) and parents in Shatin.

17.Before committing the offence, Mr Chan worked as a cook earning $14,000 a month.  He was the sole bread winner.  He committed the offence out of greed and stupidity.

18.On the day of the offence, he went back to the restaurant to get back salary statement from his locker because he needed to find a new job.  However, he found he could not open his locker and he thought the lock was changed by others so he felt frustrated.  On the way out, he found some lockers were not safely locked so out of greed he committed the offence foolishly without thinking of the consequences.  He used the umbrella to cover his face because there were many thefts in the restaurant round about that time so as to avoid suspicion on him.

19.It was submitted that the offence was the least serious type of burglary and he carried no tools.  The value of the stolen property was no more than $1,500.  The money had been spent and he could not recall what had happened to the other stolen property.

20.He now feels remorseful and knows that his wrongdoing will bring economic consequences to his family.  He decides not to re-offend.

21.About the theft (shoplifting) offences he was sentenced for after the commission of the present offence, he admits that they were committed while on bail for the present offence.  He committed them because he had given himself up after he was arrested for the present offence.

22.At the time of this offence, he had no criminal record for dishonesty-related offence.

23.The starting point for burglary of non-domestic premises is 2 ½ years’ imprisonment.  For breach of trust, the enhancement should not be more than 3 months.

24.Mr Chan pleaded guilty, saved the court’s time and it was the first time he committed an offence of dishonesty.

25.Mr Chan has indicated he will not give evidence to support a claim of being an opportunistic burglar – he went back simply to collect the salary statement.

26.Finally, Mr Lam asked for a lenient sentence for Mr Chan.

Sentence

27.I have considered the mitigation submissions made by Mr Lam Yau Yee.

28.Prosecution advised me that Mr Chan was charged with this offence on 9 November 2017 and he appeared before a magistrate on 16 November 2017 at which time no bail was given.  He has been in custody for this matter ever since.

29.Apart from the early plea of guilty which justifies a discount of one-third from the starting point of sentence, I can find no other mitigating factors worthy of allowing further discounts.

30.The conventional sentence after trial for burglary of non-domestic premises without aggravating or mitigating features is 2 ½ years’ imprisonment (see Attorney General v Lui Kam Chi [1993] 1 HKC 215, and HKSAR v Sim Ka Wing, CACC 450/2000).

31.I do not consider this case qualifies as an opportunistic burglary because Mr Chan came prepared to the premises with an opened umbrella hoping to outflank the CCTV system.  In this respect, I do not believe Mr Chan’s claim in the VRI and also through his solicitor that he went back to the restaurant simply to collect a salary statement.

32.This case has the aggravating feature of a breach of trust in that Mr Chan gained entry to the locker room with key provided by his previous employer while Mr Chan was in employment, and which he should have returned on dismissal.  I bear in mind the principle espoused in HKSAR v Pakit Joni, CACC 10/2013; but I also note that in the present case, the theft was not from the previous employer but from fellow ex-colleagues.

33.Because of the last factor, I will not increase the starting point by 3 months but I am minded to enhance it by one month.

34.However, I note that Mr Chan was charged quite late – more than 18 months after the date of offence – for what appears to be a simple burglary although admittedly there was no admission from his cautioned statements.  There is no indication however of Mr Chan having suffered under any stress as a result; so this does not constitute a mitigating factor.

35.During the time when Mr Chan was on police bail, he committed the shoplifting offences itemized in the criminal record.  I assume the magistrates concerned had taken this factor into account when sentencing Mr Chan on the various occasions.

36.Given what had happened in terms of his commission of those further offences for which Mr Chan had already been sentenced to and served an aggregate of 13 months’ imprisonment, when sentencing now, I need to think what I would have done if those matters were all before me together with the present one.  After considering totality, I think I would have imposed a total sentence after trial of 3 years 3 months including the one month for breach of trust aforesaid.  Looking most favourably upon Mr Chan, I assume that he also pleaded guilty in those earlier proceedings involving shoplifting.  Giving him the 1/3 discount, I would have imposed a sentence of 2 years 2 months on him should I be dealing with all his dishonesty-related offences.

(Mr Chan, please stand)

37.Since Mr Chan had already served 13 months as earlier indicated, I will sentence him now to another 13 months’ imprisonment for the burglary conviction.