HKSAR v. Lit Wai Kay

DCCC 77/2018

[2018] HKDC 1233

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 77 OF 2018

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Reasons for Sentence

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Charges

1.The Defendant pleads guilty to 5 charges of burglary, which took place between 28 August 2017 and 1 November 2017 at 3 restaurants.   

Charge 1

2.“Prestige Cuisine Restaurant” was a restaurant situated at Ground and 1^st Floor, Charmhill Centre, No. 50 Hillwood Road, Tsim Sha Tsui, Kowloon, in Hong Kong (“Shop 1”).  Shop 1 opened for business daily from 5 p.m. to 2 a.m. the next day.

3.Shop 1 had 3 entrances, namely:-

(a) 1 main entrance on the ground floor, which was secured by a roller gate with an integral lock which could only be opened with a remote control (“Main Entrance”). At all material times, the remote control was kept in a VIP guest room of Shop 1 on the 16^th Floor of Charmhill Centre (“VIP Room”);

(b) 1 side entrance on the 1^st floor, which was secured by a door with an integral lock (“Side Entrance”). At all material times, the keys to the Side Entrance was kept in the VIP Room; and

(c) 1 entrance at the rear lane of Charmhill Centre which would lead to the kitchen of Shop 1 (“Rear Entrance”). The Rear Entrance was secured by a door with an integral lock which could only be opened from the inside.

4.Every day after Shop 1 was closed for business, the Main Entrance, the Side Entrance and the Rear Entrance would be closed and locked.  All keys were placed in the VIP Room, which would be closed and locked.  The door of the VIP Room was secured by a password lock at all material times.

5.On 29 August 2017, at around 8:00 p.m., Shop 1 was open for business.  An employee of Shop 1 found that a box containing cash of around HK$10,000 (“Cash Box 1”) originally placed at the cashier register was stolen.  The employee informed Mr. NG Dao-cheong (“PW1”), owner of Shop 1, immediately.

6.PW1 checked and confirmed that Cash Box 1 was stolen.  Apart from this, 8 bottles of “MOU TAI” liquor and 6 bottles of red wine were also stolen.  The stolen bottles of “MOU TAI” liquor were worth around HK$38,400 in total and the stolen bottles of red wine were worth around HK$22,800 in total. 

7.Together with the stolen cash, Shop 1 suffered a loss of around HK$71,200 in total.

8.PW1 checked the CCTV installed in Shop 1 and found that on 28 August 2017 at around 1:45 p.m., the Defendant had entered Shop 1 and had stolen Cash Box 1 and the bottles of liquor and wine.

9.The Defendant was a former employee at Shop 1 for 2 weeks in June 2016. 

Charge 2

10.“Alabar” was a bar situated at Ground Floor, No. 38 King Kwong Street, Happy Valley, in Hong Kong (“Shop 2”).  Shop 2 opened for business daily from 5 p.m. to 5 a.m. the next day.

11.Shop 2 had 1 entrance which was secured by a door with a padlock.  At all material times, only Mr. HUI Fai Bonno (“PW2”), owner of Shop 2, held the keys to the padlock.  There was a curtain outside the door which would be put down when Shop 2 was closed for business. 

12.On 28 September 2017 at around 5:00 a.m., PW2 closed Shop 2 for business.  He locked the door with the padlock and put down the curtain outside the door.

13.At around 5:00 p.m. on the same day, PW2 opened Shop 2 for business.  When he arrived, he found that the padlock on the door was missing. 

14.PW2 checked inside Shop 2 and found that a cash box containing cash of around HK$6,559 (“Cash Box 2”) and 14 bottles of liquor were stolen.  The stolen bottles of liquor were worth around HK$16,000 in total.  Together with the stolen cash, Shop 2 suffered a loss of around HK$22,559 in total.

15.CCTV installed in the building next to Shop 2 indicated that on 28 September 2017 at around 11:27 a.m., the Defendant walked past Shop 2 and was carrying some bags.

16.The Defendant was a former employee at Shop 2 for 1 month in around 2013. 

Charge 3

17.“Yixin Restaurant” was a restaurant situated at Basement, No. 50 Hennessy Road, Wan Chai, in Hong Kong (“Shop 3”).  Shop 3 opened for business daily from 12 noon – 3:30 p.m. and from 6 p.m. to 11:30 p.m.

18.Shop 3 had 2 entrances, namely:-

(a) 1 front entrance secured by a door with a sliding latch and a roller gate with an integral lock (“Front Entrance”); and

(b) 1 rear entrance which was secured by a door with an integral lock.

19.On 9 October 2017 at around 5:04 p.m., Shop 3 was not yet open for business.  At the material time, the Front Entrance was not locked, but a sign “Closed” was hung outside. 

20.At around 6:00 p.m. on the same day, Mr. CHAN Tak-fat (“PW3”), Manager of Shop 3, found that 3 bottles of red wine originally placed on the wine counter of Shop 3 were stolen.  The stolen bottles of red wine were worth around HK$2,940 in total.

21.CCTV installed at Shop 3 indicated that on 9 October 2017 at around 5:04 p.m., the Defendant entered Shop 3 and inspected the wine counter.  When the Defendant left Shop 3, he was carrying a bag.

Charge 4

22.On 21 October 2017 at around 5:56 p.m., Shop 3 was not yet open for business.  At the material time, the Front Entrance was not locked, but a sign “Closed” was hung outside.

23.At around 6:00 p.m. on the same day, PW3 found that 1 bottle of “WULIANGYE” liquor originally placed on the wine counter of Shop 3 was stolen.  The stolen bottle of “WULIANGYE” liquor was worth around HK$2,800.

24.CCTV installed at Shop 3 indicated that on 21 October 2017 at around 5:56 p.m., the Defendant entered Shop 3, inspected the wine counter, and then left.  He was carrying a rucksack throughout.

Charge 5

25.On 1 November 2017 at around 6:00 p.m., Mr. TO Chik-lun Derek, owner of Shop 3 (“PW4”), returned to Shop 3.  At the material time, Shop 3 was not yet open for business.  At the material time, the Front Entrance was not locked, but a sign “Closed” was hung outside.

26.At around 6:04 p.m., PW4 saw through the CCTV that the Defendant entered Shop 3, walked into the wine counter and took out a bottle of liquor.  PW4 notified PW3 immediately. 

27.PW3 and PW4 ran to check and found the Defendant hiding in the toilet of Shop 3. PW3 requested the Defendant to open the door.  When the Defendant did, PW3 immediately recognised the Defendant, who was a former employee of Shop 3.

28.PW3 further found a bottle of “XI” liquor hidden below the toilet bowl.  The stolen bottle of “XI” liquor was worth around HK$1,650.  PW3 reported the case to the Police. 

29.PW3 then checked the earlier CCTV footages and recognised that it was the Defendant who stole the 3 bottles of red wine and 1 bottle of “WULIANGYE” liquor in Shop 3 on 9 and 21 October 2017 respectively.

30.The Defendant was a former employee at Shop 3 from April to May 2016. 

Arrest of the Defendant

31.The Defendant was arrested at Shop 3.  In the subsequent enquiries, he said he had worked as a waiter for a short time at each location beforehand.  He committed the offences out of greed and to make money for his daughter’s education and his wife’s medical expenses.

Mitigation

32.The Defendant is now 41 years old, of F. 5 education level.  He last worked as a casual worker in restaurants.  His wife works as a warehouse keeper with a monthly income of $20,000.  She has to financially support her parents who are retirees.  She is on daily medication for diabetes and hypertension. She was made a bankrupt by court order in February 2018.  Their daughter is 12 years old, a F. 1 student in the coming September. 

33.He had several drug possession records.  He was fined $1,000 for theft in 2007. He had not been convicted of burglary before.  

34.He committed the present offences to pay for his heroin consumption in the sum of $400 per day.  He had become a drug addict since 1994.  He stills owes $50,000 to a finance company. 

35.Mr. Yuen submits that a wholly concurrent sentence shall be considered on the 3^rd – 5^th Charges as they involved the same restaurant whereas a partly concurrent sentence shall be imposed between the 1^st and the 2^nd charges. 

Sentencing considerations

36.In R v Wong Man [1993] 1 HKC 80, the Court of Appeal states that the proper starting point for non-domestic premises shall be 2 years 6 months’ imprisonment for a first offender of full age. 

Sentencing this Defendant

37.The first burglary, which took place at a restaurant in Tsim Sha Tsui was committed one month before the second burglary, which took place in a restaurant in Happy Valley. 

38.The third burglary took place 11 days later at a restaurant in Wan Chai.  The fourth burglary, there again, was 12 days after.  The fifth burglary, there again, was 10 days after the fourth one.

39.All 5 were separate incidents despite the same restaurant being involved on the 3^rd – the 5^th Charges.  There is no sentencing principle to the effect that multiple burglaries at the same premises are to be considered a single transaction.  The correct approach is to order separate sentences to be adjusted by way of totality. 

40.I take 2 years 6 months as the starting point for each charge.  There is a one-third discount for the guilty pleas.  The sentence is 20 months each.  I make the following adjustment based on totality:

(1) 20 months on the 1^st Charge to be served;

(2) 2 ½ months on each of the 4 other charges to be consecutive to the 1^st Charge and among themselves;

(3) The total sentence is 30 months.