HKSAR v. Chan Wing Lun

DCCC 378/2018

[2018] HKDC 1120

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 378 OF 2018

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REASONS FOR SENTENCE

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1.Defendant Chan Wing Lun pleaded guilty to one charge of Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. Particulars of offence are that he, on 27 January 2014, in Hong Kong, having entered as a trespasser part of a building known as “Auntie Sweet”, Ground Floor, No 13 Tsing Fung Street, North Point, stole therein cash of $122,044 Hong Kong currency.

Admitted facts

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

3.Ms Cheng was a staff member of “Auntie Sweet”, a shop located in Tsing Fung Street, North Point.  She was also the girlfriend of the defendant Mr Chan.  Ms Cheng was the person responsible for calculating the daily shop revenue, and for closing and locking the shop gate.

4.Before knocking off work on 26 January 2014, Ms Cheng locked the drawer under the cash register.  The drawer had cash $122,044.

5.In the early hours of 27 January 2014, Ms Cheng and Mr Chan returned to the former’s home after having midnight snack with Ms Cheng’s colleagues.  Ms Cheng then took a shower leaving her key to the shop unattended.  When Ms Cheng finished her shower, Mr Chan left on some pretext.  At around 8:30 am, Mr Chan returned.  In the afternoon of the same day, Mr Chan left and was never seen by Ms Cheng again.  In the evening, when Ms Cheng returned to the shop, she found the cash missing from the drawer.

6.The CCTV installed at the shop captured the image of Mr Chan stealing the cash from the drawer.

7.On 27 January 2018, the police arrested Mr Chan.  Under cautioned VRI, he stated that:-

(a) On the offence date, at Ms Cheng’s home, he took the keys to the shop when she was taking a shower;

(b) He then returned to his home to change clothing before paying a visit to the shop;

(c) He opened the gate using Ms Cheng’s keys and once inside, he stole the cash through a gap in the drawer;

(d) Afterwards, he returned to Ms Cheng’s home and put the keys back to the original position;

(e) He had spent all the money that he stole;

(f) In his previous visits to Ms Cheng at the shop, he saw where the shop staff had placed the money; and

(g) He stole because of his financial predicament.

8.Mr Chan committed the present offence while on police to court bail for a case of theft under court reference KTCC 1319/2013.

Criminal record

9.The agreed criminal record shows that Mr Chan has 22 previous convictions 20 of which were for theft and the remainder were for using a false instrument.  He was last sentenced on 29 January 2018 for 2 cases of theft to a total of 13 months’ imprisonment.

Antecedents

10.The agreed antecedents statement shows Mr Chan to be aged 38 (33 at the time of the offence); that he studied up to F5 level; that he had been a salesperson and decoration worker in the past and he was before arrest a part-time delivery worker.  He has been serving an imprisonment term for KT/1319/13 and TM/267/18 since 29 January 2018.

11.Before arrest, he was living with his current girlfriend in Kam Tin, Yuen Long.

Mitigation

12.Mr Wong Tsz Ho of solicitor mitigated on behalf of Mr Chan.

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

14.Mr Chan is single and was co-habiting with a different girlfriend since October 2015.  He was earning $5,000-6,000 a month only working as a part-time delivery worker.

15.Mr Wong relies on the case of R v Wong Man, CA 372/1992, to submit that the correct starting point for burglary of non-domestic premises is 2½ years.

16.Mr Wong submits that Mr Chan committed the offence because he was out of money at the time, without considering the consequences caused to his then girlfriend.

17.He had jumped bail between 2013 and 2018 for a case of theft until he was caught red-handed on 27 January 2018 while committing yet another case of theft.

18.It is acknowledged that there are two aggravating factors namely, a bad dishonesty-related conviction record and the commission of the present offence while on bail.

19.However, Mr Wong emphasized that Mr Chan had confessed this crime and was very cooperative with the police at the earliest stage.

20.Mr Wong told the court that Mr Chan will be released for his last two convictions in October this year.

21.Lastly, Mr Wong urged the court to take into account the totality principle and the sentence that Mr Chan is currently serving when considering the present sentence.

Sentence

22.I have considered the mitigation submissions made by Mr Wong Tsz Ho.

23.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).

24.Taking into account the two aggravating factors aforesaid, in the case of Mr Chan, I shall adopt a starting point of 3 years’ imprisonment for the burglary offence.

25.Assuming I were to deal with not only the present burglary charge but also Mr Chan’s last two theft charges, I need to work out a notional global starting point for all three charges.

26.In this notional exercise, I will assume that Mr Chan pleaded guilty to those last two theft charges.  Assuming the learned magistrate gave Mr Chan the usual 1/3 discount, he/she must have adopted the respective starting points of 9 months and 15 months for the two theft charges.  Seen in this light, the two thefts must have been rather serious and for the second theft, no doubt due, if only partly, to the fact that it was committed while Mr Chan was on bail.

27.All things considered including totality, if I were to sentence Mr Chan for all three charges today, I would have adopted a starting point of 4 years’ imprisonment.

28.Mr Chan has pleaded guilty in time and so I shall give him the full 1/3 discount.  So the notional sentence I would have imposed would be 32 months’ imprisonment.  There are no other mitigating factors of sufficient weight to warrant any further discount.

[Mr Chan, please stand]

29.Mr Chan is serving a 13 months’ term.  For that reason, I will impose a sentence of 19 months’ imprisonment on Mr Chan to be served consecutively to the sentence he is currently serving, thus making a total of 32 months.