HKSAR v. So Kam Loi

DCCC 205/2018

[2018] HKDC 860

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 205 OF 2018

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REASONS FOR SENTENCE

The defendant pleaded guilty to 2 offences of "Theft" and 1 offence of "Burglary". He stole small sums of cash from stalls in wet markets and from a restaurant.

Summary of Facts

Charge 1

2.Mr. WONG (PW1) is the owner of Ping Kee Store, a stall located at Kwong Fuk Market, Tai Po selling vegetables ("Shop 1").  About 5:25 p.m. on 25 December 2017, PW1 found $500 missing from the cash box of Shop 1.  The Police was alerted.

3.CCTV footage revealed that when the staff members of Shop 1 were looking away, the defendant walked quickly towards the cash box, put his hands inside it and then ran away.

Charge 2

4.Madam WONG (PW2) is the owner Sun Po Sing Restaurant located at On Fu Road, Tai Po ("Shop 2").  About 4:30 a.m. on 28 December 2017, an employee returned to Shop 2 to prepare for its opening at 6:00 the same morning.  That employee left the metal gate half open for convenience.  About 6:15 a.m. that day, PW2 found the plastic tray which contained $1,000 cash and some miscellaneous items missing from the cashier's desk.

5.CCTV footage revealed that a few minutes after 5:00 that morning, the defendant entered Shop 2 through its half open metal gate.  He left after 15 minutes.

Charge 3

6.Mr. NGAI (PW4) is the owner of Kwan On Vegetable, a stall located at Tai Wo Market, Tai Po selling vegetables ("Shop 3").  About   9:00 a.m. on 29 December 2017, police officers saw the defendant loitering on the Ground Floor of Tai Wo Market and kept looking at the cashier area of different stalls.

7.About 9:40 in the same morning, the officers saw the defendant taking away from Shop 3 a plastic basket which contained money.  They stopped and searched him.  A brown plastic basket containing cash in the sum $107.70 was found on the defendant.

Admissions

8.Under caution, the defendant admitted having stolen from Shops 1 to 3 because he needed money to buy food.

Mitigation & Sentence

9.The defendant is 49 and has 39 conviction records, which included 4 burglary offences and over 50 theft-related offences. He was sentenced to 22 months' imprisonment in December 2016 for a burglary offence. He was released from prison in mid-November 2017. Defence solicitor Mr. IU informed me that the defendant was brought up in a fishermen family; he received no formal education and is illiterate. He fished with his father until 1997.

10.In mitigation, Mr. IU submitted that the defendant has difficulties in looking for jobs owing to his inability to read or write. At the time of the present offences, the defendant was a homeless person without any money. He stole the money in order to buy food. Regarding Charge 2, Mr. IU submitted that it was an opportunistic burglary since the metal gate of the restaurant was half open.

11.The defendant has an appalling criminal record, which renders him a "repeated offender" of both theft and burglary offences. He committed the present offences in just a month after being released from prison. The sentences in the present case must carry a deterrent element.

12.For Charges 1 and 3, I adopt a starting point of 12 months' imprisonment each. With the guilty plea, the sentence is reduced to 8 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 8 months' imprisonment for each charge.

13.For Charge 2, the normal starting point for non-domestic burglary is 2.5 years' imprisonment. I accept that no tools were used and no advance planning was involved. On the other hand, the defendant being a repeated offender is certainly an aggravating factor. I consider 2.5 years' imprisonment to be the appropriate starting point. With the guilty plea, the sentence is reduced to 20 months. I sentence the defendant to 20 months' imprisonment for this charge.

14.Bearing in mind the totality principle, I consider a global starting point of 36 months to be appropriate for all 3 charges. With the guilty pleas, the overall sentence becomes 24 months. Hence, I order the sentences to run in the following manner :-

(i) 2 months in Charge 1 consecutive to Charge 2; and

(ii) 2 months in Charge 3 consecutive to Charges 1 and 2.

Thus, arriving at a total prison term of 24 months.

15.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. There is sufficient social welfare protection in modern Hong Kong for the poor to meet their basic needs. Being a released prisoner, the defendant must have known how to seek help.

16.The defendant has spent most of his time in and out of prison since 2000. The court can only do so much in deterring a repeated offender by way of a heavy penalty. Whilst the sentence must carry a deterrent effect, it cannot go out of proportion. I accept that there are limits in our penal system. If the defendant refuses to reform and to live a law-abiding life, that is his choice, and he will have to face the consequences.