HKSAR v. Chan Yuen Shing (also known as Chan Kwong Chun)

DCCC 111/2018

[2018] HKDC 1000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 111 OF 2018

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REASONS FOR SENTENCE

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1.Defendant Chan Yuen Shing (also known as Chan Kwong Chun) is charged before me with two charges namely, Charge 1 of Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210; and Charge 2 of Theft, contrary to section 9 of the Theft Ordinance, Cap 210.

2.The particulars of Charge 1 are that he, between 11 and 12 November 2017, both dates inclusive, in Hong Kong, having entered as a trespasser part of a building known as “Wing Tai Ginseng & Bird Nest Company”, Ground Floor, No 220 Des Voeux Road West, Sai Ying Pun, stole therein 3 packs of cordyceps, two packs of wild American ginseng and 4 boxes of bird’s nest.

3.The particulars of Charge 2 are that he, on a day unknown in November 2017, in Hong Kong, stole one octopus card, property belonging to another.

4.Mr Chan pleaded guilty to Charge 1 with the prosecution asking the court to leave Charge 2 on court file not to be proceeded with without the leave of this court or the Court of Appeal.  I convicted Mr Chan of Charge 1 and made the order requested in respect of Charge 2.

Admitted Facts

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

6.In the evening of 11 November 2017, Mr Chan entered the backyard of a Wing Tai Ginseng & Bird Nest Company (“the Shop”) located at the address specified in the particulars of Charge 1.  He then put on a pair of gloves and a mask.  Next, he turned away the CCTV camera.  In the small hours of the next day, Mr Chan ransacked the shopfront of the Shop.

7.When the owner of the Shop returned to the Shop later in the day, he discovered that the metal door between the backyard and the storeroom had been prized open and that the Shop had been ransacked.  After checking, he found the following property missing:-

(a) Three packets of cordyceps, at an estimated value of $400,000;

(b) Two packs of wild American ginseng, at an estimated value of $30,000; and

(c) Four boxes of bird’s nest, at an estimated value of $32,000.

8.Two screwdrivers (“Exh 1”) were found at the scene.

9.At about 1005 hours on 12 November 2017, Mr Chan went to the vacant residence of his friend Ms Or.

10.In the late evening of the same day, Mr Chan was arrested for Burglary.

11.On 14 November 2017, a house search conducted in Ms Or’s residence unearthed the following:-

(a) Two boxes of bird’s nest (“Exh 7”) found behind the kitchen door;

(b) Two packs of wild American ginseng (“Exh 8”) found in the gap between a refrigerator and a cupboard; and

(c) Two packs of American ginseng (“Exh 9”) found in the refrigerator.

12.Ms Or had no idea about the items Exh 7 and Exh 8.  However, she said that Exh 9 was given to her by Mr Chan.

13.The owner of the Shop identified Exh 7 and Exh 8 as part of the missing property.

14.Under caution on 14 November 2017, Mr Chan stated, inter alia, that:-

(a) He bought Exh 9 and gifted it to Ms Or;

(b) He had burgled the Shop by first climbing into the backyard and then damaging the door with iron railings which he sawed down;

(c) He stole three packs of cordyceps, two packs of American ginseng and four boxes of bird’s nest;

(d) He brought to the Shop two screwdrivers ie Exh 1, and a pair of pincers which he later threw away;

(e) He left the cordycepts and two of the four boxes of bird’s nest with a man in Sheung Shui who would sell them for him; and

(f) He went into Ms Or’s residence using a key entrusted to him by her and deposited Exh 7 and Exh 8 there without her knowledge intending to retrieve them later for the purpose of sale.

Criminal record

15.The agreed criminal record shows that Mr Chan has 21 previous convictions accumulated through 15 court appearances.  A total of 17 of those convictions were burglary or attempted burglary convictions; 2 others were for Going equipped for stealing.

Antecedents

16.The agreed antecedents statement shows Mr Chan to be aged 64 now and also at the time of the offence.  He was educated to P3 level in the Mainland. He used to work as a farmer and a construction site worker.  He was last discharged from prison in June 2017.  He lived with his wife and son before arrest.

Mitigation

17.Mr Terry Kan of counsel mitigated on behalf of Mr Chan.

18.The mitigation submissions may be summarized as follows.

19.Mr Kan submitted the authorities of HKSAR v Chan Yuen Shing & Anor, CACC 281/2014, and HKSAR v Cheng Wai Kai, CACC 338/2007.

20.Mr Kan submitted that the goods that Mr Chan had stolen, though of high value, were not as valuable as diamonds.  As for ransacking, Mr Kan submitted that as there were no photographs to show the degree of ransacking, it should be treated at the lower end.

21.Mr Kan agreed that Mr Chan has a bad criminal record.

Sentence

22.I have considered the mitigation submissions made by and the authorities submitted by Mr Kan.

23.I have seen the photographs submitted by the prosecution without objection from the defence.

24.The conventional sentence for burglary of non-domestic premises without aggravating or mitigating features is 2½ years’ imprisonment (see Attorney General v Lui Kam Chi [1993] 1 HKC 215, and HKSAR v Sim Ka Wing, CACC 450/2000).

25.Mr Chan is, in the full sense of the term, a persistent offender. Applying the principle enunciated in the case of HKSAR v Chan Pui Chi [1999] 2 HKLRD 830, and in order to serve the dual purpose of added deterrence and protection of the public, I shall have to enhance the sentence by 6 months.

26.Taking note also of the facts of some of the previous cases committed by Mr Chan, I have no difficulty in coming to the conclusion that Mr Chan was clearly targeting property of high value when he chose his victims.  Coupled with the fact that he had ransacked the premises here and that more than $400,000 worth of stolen goods are unrecovered, I feel justified in enhancing the sentence before plea by 3 more months.

27.The starting point for Mr Chan will therefore be 3 years 3 months’ imprisonment.  He pleaded guilty in time and is therefore entitled to the full 1/3 discount.

28.There are no other mitigating factors of sufficient weight to warrant any further discount.

[Mr Chan, please stand]

29.Mr Chan will go to prison for 2 years and 2 months.