HKSAR v. Ko Shiu Kei

DCCC 214/2020

[2020] HKDC 410

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 214 OF 2020

____________

____________

REASONS FOR SENTENCE

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

2.Full particulars of the offences are set out in the facts admitted by the defendant. In summary between 20 November and 17 December 2019 the defendant burgled a residential building (charge 1); two restaurants (charges 2 & 3) and stole from another restaurant (charge 4). 

3.All the crimes were captured on CCTV.  Photographs and screen captures from the CCTV footage have been submitted to court. 

4.Charges 3 and 4 were committed whilst the defendant was on court bail for charge 2. The defendant was only arrested for charge 1 after he committed charges 2, 3 and 4.

Charge 1

5.At around 12:50 p.m. on 6 December last year Ms Chung the representative of the Owners’ Corporation of Nga Chi Mansion, Nos. 9-14 Sze Pei Square in Tsuen Wan discovered that three CCTV cameras and some wires, which had been stored in the rear staircase at the rooftop level, were missing. 

6.CCTV footage revealed that at around 10:40 a.m. on 20 November 2019 the defendant walked up the staircase and stole the CCTV cameras and some wire valued at about $6,000.

7.In a video recorded interview, the defendant said that he entered the building with the intention to steal and took the box containing the CCTV cameras and wire.

Charge 2

8.At around 10:15 p.m. on 1 December 2019 Mr Ip, who worked in the Star Seafood Restaurant on the first floor of the Kwai Shing East Shopping Centre, closed the restaurant securing the front and rear doors.  At around 4 a.m. the next morning when Mr Lee, another worker in the restaurant, returned to work he discovered the glass of the rear fire door was broken and a bag of preserved sausages and two boxes of frozen shrimps valued at about $2,401.60 were missing from the kitchen. 

9.CCTV footage revealed at around 12:38 midnight an unknown person entering the restaurant and leaving about twelve minutes later carrying something.

10.The defendant was arrested on 3 December 2019.  Under caution and in a video recorded interview the defendant admitted walking up the staircase and entering the restaurant and stole some sausages and frozen shrimps for resale[2]. 

11.The defendant appeared in the West Kowloon Magistracy on 6 December 2019 when he was granted bail[3].

Charge 3

12.On 16 December 2019 Ms Cheung, who worked in the Yoshinoya restaurant on the 2/F of the Discovery Park Shopping Centre, No. 398 Castle Peak Road in Tsuen Wan, discovered ninety-six cans of soft drinks and two packets of chopsticks worth a total of about $400 were missing from the kitchen. 

13.CCTV footage revealed that at around 10:14 p.m. on 15 December 2019 the defendant entered the kitchen of the restaurant and took away two packets of soft drinks, each containing twenty-four cans, and returned about two minutes later and stole two more packets of soft drinks. 

14.In a video-recorded interview the defendant admitted walking up the staircase when he saw the drinks in the kitchen and entering the kitchen twice to steal the soft drinks. 

Charge 4

15.At around 10 p.m. on 17 December 2019 Mr Yim, who worked in the Vici Stage restaurant on the ground floor of Tak Yan House, No. 325-331 Sha Tsui Road in Tsuen Wan, discovered four packs of crab legs; four packs of chicken cubes; a piece of beef; half a box of scallops; three packs of chicken wings and a pack of frozen seafood were missing from the refrigerator in the backyard of the restaurant. The total value of the food was about $3,400.

16.CCTV footage revealed that at around 9:36 p.m. that night the defendant climbed into the backyard and stole the food from the refrigerator. 

17.In a video-recorded interview the defendant admitted walking to the backdoor of the restaurant and climbing over a wall and stealing the food from the refrigerator. 

Mitigation

18.In passing sentence, I have carefully considered the oral and written submissions of Mr Ng, including that the defendant committed the burglaries because he needed money for food and that he cooperated with the police[4]. 

19.Mr Ng submits that the defendant committed the crimes because of a moment of greediness; the offences were not planned and that the defendant took the opportunity to steal the stuffs[5].

20.I disagree that these crimes, which were committed in a period of less than one month, can be described as opportunistic or acting out of a moment of greed.   The defendant did not pass by an open door or vacant premises and steal food or items of little value[6].  On three occasions the defendant accessed premises and restaurants via rear staircases and in the fourth climbed over a wall. 

Charge 1

21.The burglary was committed late at night.  The defendant entered the building and walked up the rear staircase to the rooftop level.  Further as the defendant told the police he entered the building with the intention to steal.

Charge 2

22.The restaurant can be accessed by the door in the shopping mall or from the rear staircase[7]. The prosecution is unable to say which route the defendant took to enter the kitchen of the restaurant.  The defendant says he entered the kitchen from the rear staircase. 

23.Mr Ma informs the court that the CCTV footage is not clear enough to show that the defendant was the person who broke the glass of the rear fire door[8].  The defendant says he did not break the glass of the rear fire door and only pushed open the doors.   

24.Notwithstanding the defendant did not break the glass the defendant again did not walk past an open door and steal food of little value but pushed open two doors of which he had no right to enter.   

Charge 3

25.The defendant again accessed the restaurant from the rear staircase and entered twice to steal the soft drinks[9].

Charge 4

26.The defendant committed the theft by climbing over a wall to reach the backyard of the restaurant[10].

Starting point

27.The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years’ imprisonment and for burglary of commercial premises is 2 years and 6 months’ imprisonment.   

28.I am satisfied a lower starting point is appropriate for the first burglary by reason of the fact the defendant did not enter any residential premises only the rear staircase.  I am satisfied the appropriate starting point for charge 1 is 2 years and 6 months’ imprisonment[11].  I am satisfied a starting point of 2 years and 6 months’ imprisonment is also appropriate for the burglaries of the two restaurants (charges 2 & 3). 

29.I am satisfied a starting point of 14 months’ imprisonment is appropriate for theft of food valued at $3,400 from the refrigerator in the backyard of a restaurant (charge 4). 

Aggravating feature

30.Although the defendant has numerous previous convictions mostly for possession of drugs and Part 1 poisons his only convictions for offences of dishonesty were in 1992 and 2019.  In the circumstances I agree with Mr Ng this is not an appropriate case for enhancement of the starting points by reason of previous convictions[12]. 

31.The defendant committed charges 3 and 4 when he was on court bail for charge 2.  Commission of offences whilst on bail is an aggravating feature of sentence.  I enhance the starting point for charge 3 by 3 months to 2 years and 9 months’ imprisonment and charge 4 by 1 month to 1 year and 3 months’ imprisonment. 

32.Giving the defendant full credit for his pleas of guilty reduces the sentence on charges 1 and 2 to 1 year and 8 months’ imprisonment; on charge 3 to 1 year and 10 months’ imprisonment and on charge 4 to 10 months’ imprisonment.

Totality

33.Where offences are committed in different premises against different victims on different dates, consecutive sentences should be imposed, subject to the totality principle. 

34.Taking into account the seriousness of the offences; the stolen properties were not recovered; the defendant’s cooperation with the police and the defendant’s personal circumstances, I am satisfied a total sentence of 3 years and 2 months’ imprisonment properly reflects the defendant’s overall criminal culpability on the four charges[13].  

Sentence

35.The defendant is convicted and sentenced as follows:

Charge 3 – 1 year and 10 months’ imprisonment;

Charge 1 – 1 year and 8 months’ imprisonment with 6 months consecutive and 14 months concurrent to charge 3;

Charge 2 – 1 year and 8 months’ imprisonment with 6 months consecutive and 14 months concurrent to charges 1 & 3;

Charge 4 – 10 months’ imprisonment with 4 months consecutive and 6 months concurrent to charges 1, 2 & 3.

The total sentence to be served by the defendant is 3 years and 2 months’ imprisonment.

[1] Cap 210.

[2] Mr Ng said that the defendant did not put on the uniform of a cook as stated in §14 (b) of the Summary of Facts and explained that the defendant had mistaken this with some other case. 

[3] This information is derived from the Extract of Record of Bail Proceedings and the transfer papers.  

[4] See §§2, 9 & 12 of the written mitigation submission.

[5] See §§10,11 & 139 of the written mitigation submission.

[6] See for example HKSAR v Cheung To Ming [2006] 2 HKLRD 260; HKSAR v Chau Man Ying CACC 439/2011 and HKSAR v Hai Chung Po CACC 115/2013.

[7] Photograph 1 – charge 2 shows the door of the shopping mall. Photograph 6 shows the door leading to the restaurant from the staircase.  

[8] Photographs 7, 9, 10, 11 & 12 – charge 2 show the rear fire door with the broken glass window.  This door is reached after pushing open the door shown in photograph 6.  After pushing open this door a person can enter the kitchen.  A layout plan of the kitchen was also submitted to court. 

[9] The rear staircase is shown in photograph 5 – charge 3. Photograph 1 shows the door of the shopping mall. 

[10] The wall is shown in photograph 1 – charge 4

[11] See HKSAR v Suen Chi Wai [2015] 5 HKLRD 33.

[12] See §14 of the written mitigation submission. 

[13] See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 and HKSAR v Pau King Kong [2013] 3 HKLRD 676.