HKSAR v. Hong Yiu Kuen
Read the full judgment text of DCCC 664/2018 on BabelCite. This District Court judgment was delivered on 12 November 2018.
1. The defendant pleaded guilty to five counts of “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.
Cited by 1 case · Cites 3 cases
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DCCC 664/2018 [2018] HKDC 1410 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 664 OF 2018 -------------------------------
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--------------------------------------- REASONS FOR SENTENCE --------------------------------------- 1.The defendant pleaded guilty to five counts of “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. Facts 2.The subject premises of charge 1 is a Japanese restaurant in Sai Wan Ho. CCTV captured the defendant entering the restaurant at 4:54 pm on 27 April 2018 when the restaurant was closed and the roller gate was left half open. He was seen opening the cash register with a key found under the register and stealing the cash therein. Upon checking, HK$4,400 cash was found missing. 3.The subject premises of charge 2 is a bar situated in Central. At around 2 am on 2 May 2018, the main door of the bar was closed without being locked. Subsequently, staff of the bar found the defendant standing near the cash register. When being confronted, the defendant left the bar. CCTV captured the defendant walking into the bar and trying to open the cash register at around 2 am that day. No loss was suffered by the bar. The defendant was later identified in an identification parade. 4.The subject premises of charge 3 is a bar situated in Central. CCTV captured the defendant entering the bar through a window at around 2:35 am on 2 May 2018 when the bar was closed. The defendant was seen stealing some banknotes from the cash register and turning off the CCTV system. Cash of about HK$500 was found missing. 5.The subject premises of charge 4 is a bar situated in Central. At around 11 pm on 1 May 2018, the owner of the bar left the bar with the main gate unlocked. CCTV captured the defendant entering the bar and prizing open the cash register at around 3:05 am on 2 May 2018. He was also seen turning off the CCTV system. Cash of HK$5,332 and one tablet computer valued at HK$3,000 were found missing. 6.The subject premises of charge 5 is a flower shop situated in Tseung Kwan O. The shop had 3 walls with no gate. The entrance of the shop is secured by a canvas cover after business hours. At 8:10 am on 2 May 2018, the owner found the following items missing, namely, cash of about HK$400, 4 red packets containing cash of about HK$300 in total and 3 Maxim’s cake coupons valued at HK$150 in total. One fingerprint lifted from a red packet in the drawer matched with the defendant’s fingerprint. Mitigation 7.The defendant is aged 41, divorced with no children. He lived with his parents prior to the offence. He previously worked as a casual decoration worker but was unemployed since mid-2017. He has 19 previous conviction records, 4 relate to burglary and 12 relate to other offences involving dishonesty. He was last convicted of 2 theft offences on 23 May 2018 and is currently serving a 11-month sentence in respect of these two offences. 8.In mitigation, it was conceded that the defendant committed the present offences while on bail for one of the theft offence that he was convicted on 23 May 2018. It was submitted that the major mitigation is the defendant’s guilty plea and he should be entitled to the usual 1/3 discount. It was also submitted that after the defendant was sentenced for the 2 theft offences in May 2018, he wrote to the police twice in order to surrender himself for the present offences. It was submitted that the defendant should be given credit for his surrender. Further, it was indicated that the defendant was willing to compensate the loss suffered by the victims and the money for the compensation was ready and could be paid into court today. The court was urged to consider the totality principle in respect of the 5 charges as well as the fact that the defendant is currently serving a sentence. 9.When the defence was informed by the court that there was authority from the Court of Appeal to the effect that a lower starting point could be adopted in case of opportunistic burglar, akin to a “sneak thief”, the defence submitted that such lower starting point would be applicable to charges 1, 2, 4 and 5. Sentence 10.There is a well settled sentencing guideline for burglary of non-domestic premises. According to the guideline, the starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2.5 years’ imprisonment. 11.As to what will constitute aggravating features, it was held in HKSAR v Cheng Wai Kai, CACC 338 & 339/2007, at para 15 that:
12.The defendant is not a first offender. He has 4 previous convictions of burglary and 12 others relating to offences involving dishonesty. I consider the defendant a repeated offender and the sentence should be enhanced. Further, the defendant committed the present offences while on bail and the sentences should also be enhanced for this aggravating feature. Finally, he committed charges 2-5 on the same day, this is regarded as an aggravating feature as stated in Cheng Wai Kai and warrants enhancement of sentence. 13.In considering the appropriate starting point, I take into consideration that the defendant acted alone, 4 of the burglaries were committed at times when the premises were empty, the total value of stolen properties was not substantial, no planning or heavy equipment was involved, no substantial damage was done to the premises and the defendant was not a professional burglar. 14.In HKSAR v Sim Ka Wing, CACC 450/2000, the Court of Appeal observed that the conventional starting point for burglary can be lowered in the case of an opportunistic burglar, akin perhaps to the “sneak thief” who walks into an open office to steal whatever he can find (see also HKSAR v Cheung To Ming, CACC 406/2005). 15.In 4 of the burglaries of the present case (ie charges 1, 2, 4 and 5), the door or gate of the burgled premises were not locked or were left open or there was no gate at all. In the circumstances, I am prepared to accept that a lower starting point is appropriate for these 4 charges. However, I also find the facts of charges 1, 4 and 5 are more serious than the facts in Cheung To Ming in that money, cake coupons and computer were stolen as opposed to a few packets of noodle in Cheung To Ming. I therefore consider the appropriate starting point for each of charges 1, 4 and 5 should be 21 months’ imprisonment. For charge 2, no loss was suffered by the owner of the premises. I consider the appropriate starting point to be 18 months’ imprisonment. For charge 3, that is the usual burglary of non-domestic premises, the appropriate starting point should be 2.5 years. For each of charges 1-5, the starting point is enhanced by 1.5 months for the defendant being a repeated offender and another 1.5 months for the fact that he committed the offences while on bail. Further, the starting point for each of charges 2-5 is enhanced by another 1.5 months for the fact that the defendant committed multiple offences on the same day. Given the defendant’s plea, the sentences for each charge is reduced by 1/3 as follows:
16.Regarding the restitution, it is well settled that this can amount to mitigation, particularly when coupled with a plea of guilty (see HKSAR v Leung Shuk Man [2002] 3 HKC 424 and HKSAR v Cheung Suet Ting [2010] 6 HKC 249). Given the defendant has got the money ready to be paid into court today to compensate for the victims’ losses, he is entitled to a discount of 3 months from his sentence for each of charges 1, 3, 4, and 5. 17.As far as the allegation of surrender is concerned, I have the opportunity to read the two letters written by the defendant after his last conviction. In the first letter dated 29 May 2018, he inquired with the police as to the reason for which they were looking for him. He did not mention in the letter that he committed the present five offences. According to the prosecution, the defendant was arrested for the present offences in June 2018 and he remained silent in all the cautioned interviews conducted with him in June 2018. In his second letter dated 8 July 2018, he simply wrote to check the progress of the present case. In the circumstances, I do not accept that the writing of these 2 letters amounts to surrendering oneself. Even if I accept defence submission that the indication of willingness to assist in the investigation as mentioned in the second letter amounted to an indication of pleading guilty, that is an entirely different matter from voluntary surrender. I therefore do not consider the defendant is entitled to a further discount as a result of writing these 2 letters. 18.Apart from his guilty plea and the restitution, I do not see other mitigating factors justifying further reduction of sentence. Thus, the sentence for the 5 charges after discount for restitution are as follows:
19.All the offences committed by the defendant are entirely separate and distinct offences. In theory, their sentences should run consecutively. Taking into consideration the totality principles, I consider a total sentence of 26 months is sufficient to reflect the criminality of the defendant’s act. I therefore order that the sentences of charges 2-5 to run concurrently and that 6 months of the sentence of charge 1 to run consecutive to the combined sentence of charges 2-5, making a total sentence of 26 months. I hereby sentence the defendant to 26 months’ imprisonment. 20.The defendant is currently serving a 11-month sentence for 2 theft offences. Taking into account the totality principle, I order 24 months of the sentence for the present case to run consecutive to the sentence for the 2 theft offences (KT/1037/18 & KT/1178/18). 21.There is a compensation order as follows:
22.The money is to be paid into court by today.
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