HKSAR v. Chui Hon Fung

DCCC 52/2018

[2018] HKDC 639

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 52 OF 2018

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REASONS FOR SENTENCE

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1.The defendant, Chui Hon Fung (male)(25 years), appeared before me and pleaded guilty to a single charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

The facts

2.The subject premises is Miyaha Japanese Restaurant at Ground Floor, Hing Tat Mansion, No. 345 Ngau Tau Kok Road, Ngau Tau Kok, Kowloon (the “restaurant”).  At the material time, the defendant was a kitchen worker of the restaurant.

3.On 10 March 2017, which is about four days before the incident, the defendant requested the head chef (PW2) of the restaurant to give him a key as he wanted to resume duty earlier the next day to prepare the food.  PW2 therefore duplicated an extra key and gave it to the defendant.  However, the defendant did not show up to work on the next date, and since then, he did not pick up the calls and was nowhere to be found.

4.On 13 March 2017, before the manager of the restaurant (PW1) left, he put the sales revenue amounting to cash of HK$16,228 in a drawer under the cash register and locked.  At the same time, the cash register was also containing an additional cash of HK$3,000.

5.On 14 March, 2017, PW1 received a WhatsApp message from the defendant who confessed having stolen the sales revenue of 13 March 2017 as he needed money to help his family.  The defendant apologised in the message and asked if PW1 could give him a week’s time and not to report the matter.  The defendant further claimed that he would return to Hong Kong to surrender after sorting out the matter. 

6.PW1 returned to the restaurant and found that indeed the cash of HK$16,228 in the locked drawer together with HK$1,600 in the cash register were all stolen.  A case was then reported to the police.

7.The course of the burglary was also captured by the CCTV installed in the restaurant.  It was not until 1 December 2017 after the defendant had entered Hong Kong via the Lowu control point that he was finally arrested by the police. 

8.In a subsequent cautioned interview, the defendant admitted that he stole the money of cash of around $17,000 from the restaurant by using the key to enter the premises, and after that, he fled to the mainland immediately where he had spent all the money, and because he was persuaded by his mother, he finally returned to Hong Kong to surrender.

The defendant’s background and criminal record

9.At the time of the offence, defendant was 25 years of age and he is now aged 26.  He has a hitherto clear record.  Defendant was married with no children and since 2016 was separated with his wife.  He was born in the mainland China and he became a Hong Kong resident in 2012.  Since then, he has been working as a kitchen worker in Hong Kong.  He received his education in the mainland up to Form 3 level.  He started working in the subject restaurant in November 2016 with a monthly salary of HK$12,500, out of which, he also gave a contribution of HK$3,000 to his mother.  

10.In mitigation, Miss Ng, counsel for the defendant instructed by the DLA, informed the court that at the time of the offence, the defendant owed a debt of RMB9,000 in mainland China.  I was told that he originally borrowed only RMB4,000 but the loan was borrowed under heavy interest, and as a result of which, he was traced to return more than double in the sum of RMB9,000. After he had stolen the money, he went back to mainland and dared not to come back.  I was told that all his family members, including the sisters, are all residing in China and the mother has also returned to China.  He could have spent a long time in China but under the persuasion of his mother, he decided to come back to Hong Kong to face the consequences of his misdeed.

11.Miss Ng recognised that this is a case of a burglary of non-domestic premises but the offence was further aggravated because of the fact that it is also a breach-of-trust case.  Miss Ng has submitted to the court a number of authorities, including a Court of Appeal authority, HKSAR v Chen Ting Fang CACC 221/2007 (unreported, 14 March 2008) where a similar breach‑of-trust case was also dealt with by the Court of Appeal.  The enhancement by the sentencing judge of 3 months was approved by the Court of Appeal.

12.Miss Ng urged this court to do the same, and also she has submitted for my consideration a letter of mitigation written by the defendant himself in which he has expressed his regret and sorrow.  In the letter, the defendant mentions that the mother is now very sick and hospitalised in the mainland and hopes that this court can give him a chance so that he can leave the gaol earlier in order to take care of his mother in the mainland.  Because of the defendant’s plea, Miss Ng urged the court to give him the full one-third discount.

Sentencing considerations

13.The present case is a burglary of non-domestic premises.  In R v Wong Man [1993] 1 HKC 80, the Court of Appeal had already said that a starting point in the case of a burglary of non-domestic premises is 2 years and 6 months’ imprisonment in a case without any aggravating or mitigating factors and it is only applicable to a first offender of full age.

14.The defendant in this case is a first offender.  As properly recognised by the defence, this is a breach-of-trust case.  The defendant made use of his position in the restaurant, obtained the key and then went back to the premises to commit the burglary.  

15.The court can never accept economic reasons for committing crimes.  At the time of the offence, although the defendant had been absent without leave but he was still an employee of the restaurant because he had neither tendered his resignation nor the restaurant had formally dismissed his employment.  In any event, as said, at the time, he obtained the key under the pretext of returning to the restaurant earlier in the morning.  It also showed that this present burglary was not committed at the spur of the moment but with a degree of planning and premeditation.

16.In HKSAR v Chen Ting Fang (unreported, CACC 221/2007), the defendant burgled a flat with keys to a flat on which he did renovation work for its owner earlier on.  The trial judge ordered the 3 months’ increase based on the breach of the trust, and the Court of Appeal found that the judge was entitled to increase the sentence and affirmed the 3 months’ enhancement in that case.

17.In this case, I would also enhance the sentence by 3 months, from 30 months to 33 months.  The defendant pleaded guilty to the charge which is the only effective mitigation in this case, for which he would be entitled to a full one-third discount.  In the end, the defendant is sentenced to 22 months’ imprisonment.