HKSAR v. Tsang Sai Lam

DCCC 491/2018

[2018] HKDC 1583

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 491 OF 2018

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REASONS FOR SENTENCE

1.The defendant pleads guilty to three charges of burglary of the “Thai Western” restaurant on the G/F of No. 19 Wan Fung Street in Wong Tai Sin, contrary to section 11 of the Theft Ordinance[1].

2.Full particulars of the offences are set out in the facts admitted by the defendant yesterday. In summary at around 0215 hours on 3 April this year Mr Suen, one of the owners of the restaurant, locked up the cash till inside which was $7,556.  Mr Suen then locked the gates of the restaurant and left.  At around 0224 hours Mr Chu, the other owner of the restaurant, was viewing the CCTV footage of the restaurant when he saw the defendant open the roller gate and steal money from the cash till. 

3.Mr Chu called Mr Suen.  Both of them immediately went to the restaurant.  By the time they arrived the defendant had already left.  The defendant had stolen $1,200 from the cash till (charge 2). 

4.CCTV footage also showed that the defendant had opened the roller gate and stole $400 the night before.  A report was made to the police (charge 1). 

5.The defendant was arrested the next night, 4 April, at around 0230 hours when he again opened the roller gate of the restaurant intending to steal more money from the cash till (charge 3).

6.At the time the defendant was a part-time waiter in the restaurant responsible for serving food and collecting payment from customers.  The defendant had the password for the cash till but was not given any keys to the restaurant and was not authorized to enter the restaurant after business hours.  The defendant had however been asked by one of the staff to make a duplicate key to give to the chef for opening and closing the restaurant every day. 

7.Under caution and in a subsequent video recorded interview the defendant admitted that out of greed he stole money from the restaurant on 2 April and 3 April and that when he was arrested on 4 April he was intending to steal more money.  The defendant said that when he made the duplicate key he made an extra key which he kept and used to enter the restaurant to steal the money. 

Mitigation

8.In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Wong together with the defendant’s mitigation letter. 

9.I take into account the defendant has no previous similar convictions.  Mr Wong explains that after leaving school the defendant first worked as a coolie and then as a driver in a transport company.  About two to three years ago the defendant and his family decided to buy their own light goods vehicle so that the defendant could run his own business.  Unfortunately, the business failed and the defendant could not pay the monthly hire purchase charges and also owed the government over $10,000 in fixed penalty fees. 

10.Working part time in the restaurant the defendant was unable to pay the outstanding amounts and therefore stole money from his employer. 

Starting point

11.The correct 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 years and 6 months’ imprisonment. 

12.Mr Wong submits the burglaries are in reality nothing more than petty theft.  I disagree.  Whilst only a small amount of money was stolen the burglaries were clearly planned.  The defendant duplicated a key which he used to gain entry to the restaurant to steal the money.  This is an aggravating feature of the burglaries by reason of which the court may enhance the starting point[2]. 

13.On the other hand, the defendant did not steal all the money in the cashier till. On 3 April he left the majority of the money in the till.  Ms See is unable to confirm whether all the money in the cashier till was stolen on 2 April.  With only $400 stolen on 2 April it is most likely all the money was not stolen. 

14.Taking into account the small amounts stolen and that the defendant has a clear record, I do not enhance the starting point by reason of the fact the defendant used the duplicate key he made to enter the restaurant.   

15.Giving the defendant full credit for his pleas of guilty reduces the sentence on each charge to 1 year and 8 months’ imprisonment.

Restitution

16.Sentence was adjourned until today for the defendant to arrange to pay into court the money he stole from his employer.  $1,600 has now been paid into court.   In recognition of this I reduce the sentence on charges 1 & 2 by 1 month to 1 year and 7 months’ imprisonment. 

Totality

17.Taking into account all the circumstances of the three burglaries including that the same premises were burgled; a total of $1,600 was stolen which sum the defendant has made restitution and that the defendant has a clear record, I am satisfied that a total sentence of 1 year and 10 months’ imprisonment properly reflects the defendant’s criminality on the three charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[3].  

Sentence

18.The defendant is convicted and sentenced as follows:

Charge 1 – 1 year and 7 months’ imprisonment.

The defendant is ordered to pay $400 compensation to Mr Suen On Wai. Payment is to be made from the monies paid into court.

Charge 2 – 1 year and 7 months’ imprisonment with 2 months consecutive and 17 months concurrent to charge 1.

The defendant is ordered to pay $1,200 compensation to Mr Suen On Wai. Payment is to be made from the monies paid into court; and

Charge 3 – 1 year and 8 months’ imprisonment with 1 month consecutive and 19 months concurrent to charges 1 & 2.

19.The total sentence to be served by the defendant is 1 year and 10 months’ imprisonment.