HKSAR v. The Cheung Yung

DCCC 553/2019

[2020] HKDC 202

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 553 OF 2019

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Reasons for Sentence

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Charge

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

Facts

2.On 6 April 2019, a report was made to the police that “Prince Restaurant” (“Restaurant”), located at Shop 37-39, G/F, Cheung Hang Estate Market (“Market”), Cheung Hang Estate, 6 Liu To Road, Tsing Yi, was burgled.  A silver iron box containing coins of HK$260, 5 bags containing coins of HK$500, and a pink iron box containing banknotes and coins of about HK$800 were found missing from a locked drawer under the cash register of the Restaurant.

3.PW1, a staff member of the Restaurant, confirmed that she had locked the said drawer and placed the key in an unlocked plastic container besides the cash register before she left the Restaurant at night on 5 April 2019.

4.Upon checking, PW2, the owner of the Restaurant, confirmed cash of about HK$1,560 had been stolen in this incident.

5.In the morning on 6 April 2019, it was also found the lock of the main door of the Market, where the Restaurant located at, was broken. The main door of the Market would be locked from 8 p.m. to 7 a.m. every day.

6.CCTV footage of the Market and the Restaurant showed that at about 1:24 a.m. on 6 April 2019, the Defendant pulled the main door of the Market with force and eventually gained entry.  Afterwards he opened the cash register at the cashier counter of the Restaurant but took nothing from it.  He then took a key from a plastic container on the cashier counter and used the key to open the drawer under the cash register, and stole some bags of coins and 2 boxes. He then fled the Market.

7.On 8 April 2019, the Defendant was intercepted in Cheung Wang Estate, Tsing Yi as he was found resembled the burglar shown in CCTV footage.  He was arrested for Burglary.

8.At all material times, the Restaurant was having an open storefront.  The cashier counter of the Restaurant can be reached from the Market without passing through any doors or gates.

9.The 2 boxes and cash of about HK$1,560 stolen are property belonging to the Restaurant.  The cost of repairing the main door of the Market is estimated to be HK$1,500.

Mitigation

10.The Defendant is 35 years of age, of F. 3 education level.  He has a lot of criminal records.  Relevant to our consideration are his 3 burglary records (DC/755/17 sentenced in March 2018) and his 5 theft records (the first one TW/3043/11 sentenced in 2011, the second one TW/2381/15 sentenced in 2015, the third one KC/774/17 sentenced in 2017, the fourth one DC/755/17 sentenced on 2 March 2018, the fifth one WK/1135/18 sentenced on 12 March 2018).  All resulted in imprisonment.  He was released from prison upon completion of the last concurrent sentences for burglary and theft in February 2019.  He is said to have learnt some useful skills in courses run by the prison authority to assist him to get a job in the construction field. 

11.His counsel asks me not to aggravate his sentence as he was arrested and sentenced for the 3 burglaries in DC/755/17 in one go.  It is not disputed that he committed the present offence 2 months after his release from prison.

12.He has now paid $3,060 as full compensation to the victim through his solicitors.

Sentencing considerations

13.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 30 months’ imprisonment for a first offender of full age. 

14.In respect of persistent offenders, the court has a duty to protect the public by imposing sentences of more deterrence (HKSAR v Chan Pui-chi [1992] 2 HKLRD 830). 

Sentencing this Defendant

15.On the facts I take 30 months as the starting point.  He could not be deterred from burglary and theft despite his release from prison only for 2 months when he committed the present offence.  Clearly the previous penalties for burglaries and thefts have apparently failed to deter him from reoffending in the present instance.  I adopt an actual starting point of 33 months.  There is a one-third discount for his plea of guilty.  I also deduct 1 month from his sentence for his full compensation to the victim.  There are no other mitigating factors.  His sentence is 21 months.