HKSAR v. Ho Van Hach (also known as Ho Man Wah and Ho Van Hack)

DCCC 1050/2018

[2019] HKDC 746

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1050 OF 2018

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Reasons for Sentence

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Charge and facts

1.The Defendant pleads guilty to the burglary of a frozen food shop on the ground floor.

2.Leung Shuk Han (“PW1”) was a clerk of Fook Yuen Foods Limited (“Fook Yuen”) on Ground Floor, Nos.151-153 Yee Kuk Street, Sham Shui Po, Kowloon, Hong Kong. Fook Yuen’s shop (“the Shop”) was situated on Ground Floor, No.153 Yee Kuk Street and Fook Yuen’s frozen food warehouse (“the Warehouse”) was situated on Ground Floor, No.151 Yee Kuk Street.  Non Fook Yuen staff were not authorized to enter the Warehouse.

3.On 1st October 2018 at about 12:45 p.m., PW1 was working in the Shop.  The metal gate of the Warehouse was not locked.  A neighbour alerted PW1 that an unknown male who did not appear to be Fook Yuen’s staff had gone into the Warehouse. 

4.PW1 went to the Warehouse entrance to check.  PW1 saw the Defendant ransacking a refrigerator inside the Warehouse.  On the floor next to the main door of the Warehouse, there were 4 packs of frozen food (subsequently found to be a pack of fish balls, 2 packs of fish sticks and a pack of cuttlefish balls).  These 4 packs of frozen food originally were placed in the refrigerator in the Warehouse. 

5.As the Defendant was not Fook Yuen’s staff, PW1 confronted the Defendant, pointed to the 4 packs of frozen food on the floor, and asked the Defendant whether he had come to steal.  The Defendant did not make any response, went to the main door instead and tried to leave but was intercepted.  The Defendant promised to put the packs of frozen food back to where they were originally placed, and begged PW1 not to call the police.  However, PW1 ignored him and reported the matter to the police.  

6.The aforesaid 4 packs of frozen food were worth about HK$432.

7.PC 24253 (“PW2”) later arrived at the scene and arrested the Defendant.  Under caution, the Defendant admitted in Punti “Ah Sir, I stole a pack of fish balls, 2 packs of fish sticks and a pack of cuttlefish balls from the refrigerator inside the shop where you arrested me.  I stole them for my own consumption”. 

8.The Defendant’s verbal admission was subsequently post-recorded in a record of interview.

9.Having entered the Warehouse as a trespasser and stole therein the 4 packets of frozen food, the Defendant had committed the offence of burglary.

Sentencing considerations

10.In A.G. v. Lui Kam-chi [1993] 1 HKC 215, the Court of Appeal states that the proper starting point for non-domestic premises shall be 2 ½ years’ imprisonment for a first offender of full age.

11.HKSAR v Cheung To-ming [2006] HKCA 119 features an opportunistic burglar who walked through an open door into the kitchen of Mai Po Wildlife Education Centre and Nature Reserve in the countryside.  He stole and consumed two packages of noodles there before he left.  A starting point of 18 months was adopted by the Court of Appeal. 

Mitigation

12.He is 48 years of age.  He came from Vietnam in 1982.  He worked as a cleaner earning $8,000 per month before the offence.  His father is 94 years old.  His wife is 42 years old.  His child is 7 years old.  They all live in Vietnam.  He contributes to their living expenditure.  

13.He had 28 criminal records in 23 court cases but none for burglary.  Among these were 2 robberies in 1989, a theft in 1992 and 2 thefts by shoplifting in 2014 and 2018 respectively.  I regard there is no call to aggravate his sentence due to his previous records. 

14.Mr. Chiu highlights the fact that the Defendant only went into the shop when the gate was left open.  He did not use any tool to prise open the gate.  There was no prior planning.  All stolen property had been recovered.  The shop suffered no loss.  I agree with Mr. Chiu’s observations.   

Sentencing the Defendant

15.This is an opportunistic burglary.  The customary starting point should not be applied.  I take a starting point of 18 months.  I give a one-third discount for his plea of guilty.  There are no other mitigating factors.  His sentence is 12 months.