HKSAR v. Yip Che Fung

DCCC 271/2018

[2018] HKDC 1523

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 271 OF 2018

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Reasons for Sentence

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Charge and facts

1.The Defendant pleads guilty to a charge of burglary.

2.PW1 is the person-in-charge of The Cosmopolitan, a restaurant on Ground Floor, No. 88 Woosung Street, Yau Ma Tei, Kowloon, in Hong Kong (the "Shop"). Business hour of the Shop is from around 6:00 p.m. to around 3:00 a.m. the following day.

3.Revenue of the Shop would be kept in a nylon bag inside the safe underneath the cashier's counter. Every permanent staff member knew the password of the safe and kept a spare key of the Shop.

4.The Defendant was a permanent staff member of the Shop.

5.On 9th November 2017 at around 4:00 a.m., PW1 opened the safe inside the Shop. Upon counting, PW1 found cash of around HK$16,600 missing.

6.Upon checking CCTV footage, it was revealed that at about 2:30 a.m. on 8th November 2017, the Defendant had opened the roller shutter of the Shop with a spare key and stole cash from the safe.

7.The case was reported.  He was arrested on 9th November 2017 at around 4:35 p.m. He admitted under caution having stolen HK$16,600 cash out of greed to repay his debts.  

Mitigation

8.The Defendant is 32 years of age.  He had completed secondary education in U.K. and then returned to Hong Kong for various vocational courses.  As he had been suffering from a brain condition attached to him since very young, he could not take up strenuous physical jobs.  He ended up as a waiter for 9 months at the Shop before the offence.  He earned $12,500 per month and contributed $5,000 to his parents for household expenses. 

9.He had 3 convictions in one court case, namely careless driving, driving without a licence, and using a vehicle without third party insurance.  He committed the present offence as he had to repay his debt of $50,000 to the victim friend in the careless driving case and repay a separate debt of $4,000.  He did not tell his parents his indebtedness as he wanted to use his own means to repay the debts. 

10.His parents had presently repaid the debts.  He was ready, willing and able to make voluntary full compensation to the restaurant forthwith.  I make an order giving him 7 days to do so.   

11.His counsel Ms. Wu seeks to convince me that the starting point should be no higher than an ordinary burglar.  The mitigating factors include the plea of guilty and the compensation.   

Sentencing considerations

12.In R v Wong Man [1993] 1 HKC 80, the Court of Appeal said that the proper starting point for non-domestic premises would be 2 ½ years’ imprisonment for a first offender of full age. 

13.The Court of Appeal in HKSAR vCheung Mee Kiu[2006] 4 HKLRD 776 (later emended in HKSAR v Ng Kwok-wing [2008] 4 HKLRD 1017, [2008] HKCU 2056) sets out the guideline sentences for breach of trust cases.  For $250,000 or less, the sentence shall be 2 years or less.   

Sentencing this Defendant

14.He committed both a burglary and a breach of trust by the same act at the same time.  While he shall not expect a lighter sentence than a burglar from the street, I see no basis for increasing it in the present case.  I take 30 months as the starting point. After one-third discount for the plea of guilty and 1 month for the compensation, the sentence is 19 months.