HKSAR v. Chan Ming Kie

DCCC 828/2018

[2019] HKDC 539

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 828 OF 2018

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REASONS FOR SENTENCE

1.The defendant pleads guilty to three charges of theft, contrary to section 9 of the Theft Ordinance[1] (charges 1, 2 & 3) and to one charge of burglary, contrary to section 11 of the Theft Ordinance (charge 4).

2.Full particulars of the offences are set out in the facts admitted by the defendant on 16 April.  In summary on four occasions in June 2018 the defendant stole durians from the Wellcome supermarket on Wo Yi Hop Road in Kwai Chung.  At the request of the court 63 photographs have been submitted by the prosecution including photographs of the supermarket. 

3.CCTV captured the first two thefts on 4 June and 10 June when the defendant left the supermarket without making payment for the durians (charges 1 & 2)[2]. 

4.On 17 June the defendant was seen stealing two durians by Ms Fu, a manager of the supermarket.  The defendant left the supermarket without making payment.  Ms Fu chased after the defendant however the defendant was able to make good his escape (charge 3) [3].

5.At around 6:30 a.m. on 28 June 2018 Mr Leung, another manager of the supermarket, was informed that the intruder alarm of the supermarket was triggered.  The rear emergency exit had been opened and the lock damaged[4].  CCTV captured the defendant entering the supermarket by the rear emergency exit, consuming two durians and leaving with two more durians (charge 4).   

6.Bloodstains were found inside the supermarket where the durians were displayed as shown in photographs 60-63.  The bloodstains were found to contain the defendant’s DNA. A ring was also retrieved inside the supermarket as shown in photograph 59.

7.The defendant was located later the same day and arrested[5].  Under caution and in subsequent video recorded interviews the defendant, inter alia, admitted that he took the durians on 4 June, 10 June and 17 June and left without making payment; that on 28 June he entered the supermarket by pushing the rear door open at a time when he knew the supermarket was not operating; ate two durians and left with two more and that he accidentally left the ring while eating durian in the supermarket. 

8.Clothing worn by the defendant during the thefts was retrieved from the defendant’s residence[6].

9.Ms Fu identified the defendant in an identification parade.   

Mitigation

10.In passing sentence, I have carefully considered everything said on behalf of the defendant by Mr Au, including that the defendant lives alone in an elderly home, his brothers having emigrated and his son no longer having any contact with him and that the defendant suffered a stroke three to four years ago and still receives follow-up consultation.

11.Mr Au says that the defendant committed the offences because he likes durian and had no money to pay because he was on CSSA.   

Criminal record

12.The defendant has appeared in court on 35 occasions between 1980 and 2018 amassing a total of 37 convictions, including eight for theft and one for robbery.  The defendant last appeared in court in August 2018 when he was sentenced to 4 months’ imprisonment having pleaded guilty to one charge of shop theft[7].

13.I have had the opportunity of reading the case papers and note that the offence was committed on 1 July 2018, three days after the defendant was arrested for the present offences.  The defendant again stole a durian from the same supermarket. 

14.Most of the other convictions are for possession of dangerous drugs; trafficking in dangerous drugs and some for possession and publishing obscene articles.

15.I am satisfied the defendant is properly to be regarded as a persistent offender.

Starting point

16.I am satisfied a starting point of 6 months’ imprisonment is appropriate for each of the three theft charges. 

17.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.

18.Mr Au submits that the burglary was opportunistic.  Mr Au says that every morning the defendant would walk past the supermarket.  On the morning of 28 June 2018 after going to the toilet, which is next to the supermarket, the defendant pushed open the rear door of the supermarket.  The rear door was not locked. The defendant then gained entry to the supermarket from the rear emergency exit without breaking the lock.  When the defendant entered the supermarket the intruder alarm triggered.    

19.The prosecution does not accept that when the defendant entered the supermarket the rear emergency exit was open and says that the defendant damaged the lock which triggered the alarm.

20.With reference to a plan of the supermarket and the photographs submitted to court Ms Li explained how the defendant entered and left the supermarket.  The defendant was first seen in the alley outside the supermarket as shown in photographs 1 and 2. 

21.From the alley the defendant entered door 1, which was not locked.  The defendant then walked to door 2 which is at the end of the corridor (“alley”) shown in photograph 9.   Door 2 is the rear emergency exit which was damaged.  Photographs 4-7 show a close-up of door 2 and the damaged lock.  Photograph 8 shows the view of door 2 from inside the supermarket. 

22.The defendant then entered the main area of the supermarket as shown in photographs 10 (a), 10 (b) and 35 & 36 and consumed two durians.  After eating the durian, the defendant is seen walking towards door 3 but changes his mind and walks back to the supermarket as shown in photographs 10 (c), 11 and 12. 

23.Mr Au informs the court that the Chinese description to photograph 11 states it was suspected that when the defendant pushed door 3 this triggered the intruder alarm.  Photographs 18-22 show door 3 and that door 3 also has a security alarm.  The defendant then stole two durians as shown in photographs 13-15 before eventually leaving by door 3 as shown in photographs 16 & 17. 

24.Mr Au confirmed that the defendant basically agreed this was the route by which the defendant entered and left the supermarket.  Having taken instructions Mr Au informed the court that the defendant did not wish to give evidence in support of his claim that both door 1 and the rear emergency exit (door 2) were open and that he did not break the lock to enter the supermarket.    

25.Notwithstanding the intruder alarm may have also been triggered when the defendant pushed door 3 I am satisfied that the defendant broke the lock of the rear emergency exit (door 2) when entering the supermarket.

26.Even if the defendant did not break the lock and the rear emergency exit (door 2) was also not locked, I am satisfied this is not a case where someone happens to just pass by an open door and enter the premises.  I find no grounds to reduce the starting point of 2 years and 6 months’ imprisonment. 

27.By reason of the defendant’s persistent offending in offences of dishonesty, albeit none for burglary, I enhance the starting point by 3 months to 2 years and 9 months’ imprisonment.

28.Giving the defendant full credit for his pleas of guilty reduces the sentence on each of the theft charges to 4 months’ imprisonment and to 1 year and 10 months’ imprisonment for the burglary.

Totality

29.In considering totality of sentence I take into account that the defendant has already served a sentence of 4 months for a similar theft committed shortly after the present offences. 

30.Regrettably all five charges were not heard together.  Ms Li explains this was due to the fact the present case involved the analysis of DNA and blood and that the officer in charge was different.    

31.Although the burglary was committed in the same supermarket I am satisfied that if all four theft charges and the burglary charge had been heard together a total sentence of 8 months’ imprisonment would have been appropriate for the theft charges with a wholly consecutive sentence for the burglary making a total sentence of 2 years and 6 months’ imprisonment. 

32.The defendant having already served 4 months’ imprisonment for the theft committed on 1 July 2018 I order the sentences on charges 1-3 to be served concurrently making a total sentence to be served by the defendant of 2 years and 2 months’ imprisonment which I am satisfied properly reflects the defendant’s criminality on the charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[8].      

Sentence

33.The defendant is convicted and sentenced as follows:

Charges 1-3 – 4 months’ imprisonment concurrent on each charge; and

Charge 4 – 1 year and 10 months’ imprisonment consecutive to charges 1-3.

The total sentence to be served by the defendant is 2 years and 2 months’ imprisonment.