HKSAR v. Cheng Hiu Man

DCCC 359/2019

[2019] HKDC 1356

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 359 OF 2019

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty today to a charge of theft and a charge of burglary on his own plea and agreement to amended summary of facts and was so convicted.

Facts

2.On 21 February 2019, the defendant stole the mobile phone left by PW1 unattended on the counter top inside the shop situated at No 35, Nam Cheong Street, Sham Shui Po, Kowloon (the “Shop”).  The mobile phone worth approximately HK$4,500.

3.The defendant entered again the unattended shop as a trespasser on 28 February 2019 and prised open the coins changing machine and stole cash in the sum of $1,000 inside.  The combination lock affixed to the door of the storeroom inside the shop had also gone missing as a result.

4.On 16 March 2019, the defendant was arrested. Under caution, he admitted he had committed the Charge 1 but remained silent in respect of Charge 2.

Criminal record

5.The defendant had 9 court appearances in the past involving 11 previous convictions, 9 of which related to dishonesty, 4 being theft or attempted theft and 4 being burglary. 

6.The last conviction was in June 2018, for which he was sentenced to 2 weeks’ imprisonment, suspended for 18 months.

Mitigation

7.The defendant is now aged 39, married.  He was born in Mainland and came to Hong Kong in year 1985. 

8.At time of arrest, he worked as a construction site worker, earning about $20,000 per month, of which he contributed $8,000 towards family expenses. 

9.He lived with his mother in Tin Shui Wai before his arrest and subsequent to the arrest he married his present wife now aged 33, who stayed in Mainland China.

10.It is admitted by the defence counsel that the most valid mitigating factor is the defendant’s guilty plea and his deep remorse for his wrongdoings.

1^st charge

11.It is submitted by defence counsel that, when the defendant saw the phone unattended on the counter of the shop on 21 February 2019, out of greed, he took the phone.  It is submitted that there is no prior planning on the part of the defendant.

2^nd charge

12.It is said that when the defendant visited the shop again on 28 February 2019, he saw his own photo in the screenshot photo, which showed his earlier taking away of the phone on 21 February 2019.  Out of anger, he prised open the storeroom, broke the coin box and took away the money.  Again, it is submitted there was no prior planning in the commission of this offence.

13.Defence counsel asks this court to deal with the defendant leniently.

14.As for the fact that the defendant is in breach of a suspended sentence of 2 weeks’ imprisonment, defence counsel asks this court also to consider the totality principle when activating the suspended sentence.

Discussion

15.In passing sentence, this court has carefully considered all that was said on behalf of the defendant.

1^st charge

16.For this offence, upon conviction on indictment, the maximum sentence is 10 years’ imprisonment.  There is no sentencing guideline for this offence, as the facts of each case as well as the background of each defendant varies.

17.This court accepts that this is an opportunistic theft and there was no planning ahead.

18.The value of stolen property is $4,500 and this court finds therefore a sentencing starting point of 9 months appropriate in the circumstances for this offence.

19.However, from the record, one can see that the defendant is a persistent offender and for which the sentencing starting point is enhanced by 3 months to 12 months’ imprisonment.

20.As said, the only valid mitigating factor is his guilty plea, of which he is entitled to one-third sentencing discount. Accordingly, the defendant is sentenced to 8 months’ imprisonment for this offence.

2^nd charge

21.It is well established that the appropriate sentencing starting point for burglary of non-domestic premises in the absence of aggravating or strong mitigating factors is that of 2½ years’ imprisonment[1]. 

22.This court accepts that in the present case the defendant had acted alone.  However, the lock affixed to the door to the storeroom in the shop was tampered with and lost.  The coin changing machine had been prised open and this could only be possible when tools were used.

23.This court therefore does not accept mitigation by defence counsel there was no planning before the commission of the present offence. 

24.The level of sophistication in the commission of this offence however is not high. 

25.The value of property stolen or damaged on this occasion is not extensive.  That would be the loss of cash $1,000 as well as the loss of the combination lock and damage to the coin changing machine.  As the commission of this offence happened in early hours, no one is expected to be within the shop at the time.

26.The criminal record of the defendant shows that the defendant is clearly a persistent offender, as he has 9 previous convictions relating to dishonesty and 4 similar convictions in the past. This is an aggravating feature.

27.In the circumstances, whilst this court adopts the sentencing starting point of 2½ years’ imprisonment for the burglary of the shop, being a non-domestic premises, the aggravating factor would enhance the starting point by 3 months.

28.The fact the defendant was angry when he saw screenshot photo of himself displayed outside the shop obviously could not constitute a mitigating factor.  It showed that he had a total lack of remorse for what he had done on the previous occasion, when he proceeded to commit a more serious offence.

29.As said, the only valid mitigating factor is that of his guilty plea, of which this court is willing to afford him one-third sentencing discount. 

30.Accordingly, for this offence, the defendant is sentenced to 22 months’ imprisonment.

31.The commission of the first offence and the second offence are about a week apart.  As said earlier, he had no remorse when he knew that he was known to be the person responsible for the first offence and he went further to commit the second more serious offence.  The commission of the second offence obviously added much to the culpability of the defendant.

32.Considering the totality principle, this court would, under the circumstances, order that 18 months of the sentence for the second offence is to run consecutive to the sentence in the first offence and a balance 4 months’ imprisonment is to run concurrent to the sentence in the first offence.

33.The defendant is therefore sentenced to a total of 26 months’ imprisonment for the two charges.

34.Coming to the suspended sentence, the defendant was sentenced to 2 weeks’ imprisonment, suspended for 18 months, on 29 June 2018 in relation to a theft case, case number WKCC/2378/18. 

35.The present offences were committed eight months after the suspended sentence was imposed.  This court sees no reason why the same should not be activated and, accordingly, 2 weeks’ imprisonment imposed are activated.

36.Even on reconsidering the totality principle, the sentence of 2 weeks’ imprisonment activated is to run wholly consecutively to the 26 months’ imprisonment imposed in the present case.

37.The defendant therefore has to serve a total of 26 months and 2 weeks’ imprisonment.