HKSAR v. Chan Wai Kit

DCCC 655/2019

[2020] HKDC 495

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 655 OF 2019

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REASONS FOR SENTENCE

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1.This case concerns three charges of similar burglary. The defendant pleaded guilty to three counts of burglaries, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.The respective burglary was committed on various dates from 17 April 2019 to 21 May 2019, by the defendant at different shops located at the same shopping centre called “In-Citi” in Yuen Long.

SUMMARY OF FACTS

Charge 1

3.In relation to Charge 1, at about 8:15 pm on 17 April 2019, the sole operator of a boutique, PW1, left the shop (Shop 1) to go to the supermarket.  She then asked the staff of another shop to keep an eye on her shop and placed a rack at the entrance of the shop to prevent other people going in.  PW1 then returned to the shop about 10 minutes later.  She then found her Chanel handbag valued at about $20,000 placed at a cabinet located at the innermost area of the shop went missing.  That contained her ID card, a Home Return Permit, cash of around $300, four keys, an Octopus card, two ATM cards and three credit cards.

Charge 2

4.At about 6:30 pm on 3 May 2019, the sole operator of a nail salon (Shop 2) located in the same shopping mall last checked her bag (valued at about $300) which was hanged on a hook inside her shop.  She then found her bag containing two keys and a plug went missing at around 9 pm on the same day.  She remembered that she had left her shop twice during that period of time and when she went out there was no one keeping an eye on the shop.

Charge 3

5.On 21 May 2019, the owner of another boutique (Shop 3) placed cash of $24,500 into a zipped bag and placed the bag in one of the drawers of the working desk in the shop.  The drawer was not locked.  At around 8:20 pm on the same day, she left the shop to have dinner and placed two dummy models at the entrance of the shop to prevent people going in.  She returned to the shop about 23 minutes later and found the bag containing the cash went missing.

6.The CCTV installed at Shop 2 captured the incident outside Shop 2 and Shop 3.  On 2 June 2019, the defendant was intercepted by the police because the face of the defendant resembled the one captured in the CCTV footage.  He was arrested and cautioned in respect of Charge 2 and Charge 3.

7.Under caution, the defendant made some admissions and the defendant admitted that he had stolen a backpack inside Shop 2. And in respect of Charge 3, the defendant said that he had stolen a pink bag containing cash of around $20,000.  He used most of the money but with a remainder of $5,000 left inside the backpack when he was arrested.

8.In the subsequent cautioned interview, he made frank admissions that he had entered the respective shops when there was no one attending the same and he took away the relevant properties which were described in the respective charge.

DEFENDANT’S BACKGROUND AND MITIGATION

9.The defendant is 36 years’ old.  He is single and currently living with his girlfriend.  He was educated up to Form 7 in Hong Kong.  He worked as a leaflet distributor and packaging worker previously.

10.In 2013, the defendant started working in a supermarket and promoted to grocery supervisor with a monthly salary of about $14,000.  It was mitigated on behalf of him by his counsel that although he is no longer living with his parents, he still gave all his money, including his bank cards, to his mother.  His mother is a housewife while his father is a maintenance repairman.  His mother will give the defendant’s girlfriend a sum of money and the girlfriend will subsequently give around $500 per week to the defendant for his daily expenses.

11.In relation to the defendant’s previous criminal record, the defendant had eight previous criminal records.  Most of them are actually theft-related offences but none of them was burglary.  And it was said on his behalf that after meeting his girlfriend, the defendant tried to turn a new leaf of his life and lead a law-abiding life for the past 6 years.

12.In respect of the present offences, it was mitigated that he was an opportunist because the defendant committed the offences when he saw the shops left unattended and the defendant could not resist the temptation at the time of the offences.  Defence counsel also said for the defendant that the offences were not carefully planned and the defendant was actually planning to seek psychological counselling after the present arrest and the defendant expressed his regret and he wanted to seek professional help after his sentence.

13.Last but not the least, the defendant and his parents managed to pay the compensation order of $39,600 altogether for the three offences which could definitely show the defendant’s remorsefulness.

CONSIDERATION OF SENTENCE

14.The Court of Appeal has set out quite clear sentencing guidelines on non-domestic burglary.  Without special mitigating or aggravating factors, the conventional starting point for a domestic burglary is 2½ years’ imprisonment.

15.Defence counsel has submitted to the court relevant authorities concerning opportunistic burglaries.  In Sim Ka Wing [1], the Court of Appeal said that the sentencing court could depart from the sentencing tariff if the offender was found to enter into an open premises.

16.In another case of Cheung To Ming [2] where the defendant entered a non-domestic premises with the door left ajar and stole two packets of noodles therein.  The Court of Appeal described the defendant as a “sneak thief” and observed that the 18 months’ imprisonment of starting point was appropriate.

17.In relation to the present offences, despite the defendant’s multiple previous criminal records, I am not going to treat him as a recidivist.

18.However, neither am I going to treat the defendant as an opportunist as in the present offences, which can be distinguished from the authorities submitted by his counsel: The three shops in question were actually located in the same shopping mall and the defendant committed the offences with similar modus operandi on various days.  It was obvious that the defendant was targeting those shops/stalls which were lacking attention in the shopping mall.  Obviously, those shops were not vacant at the material times although the doors may not have been properly locked.  Also, the defendant was not stealing just out of momentary hunger or need as those opportunists depicted in the authorities.

19.Having said that, I reckon that there is no breaking in or damage caused on those premises.  I agree that these burglaries are quite similar to a “sneak thief”.

20.Thus, I take a slightly lower starting point of 2 years’ imprisonment for each of the burglary.  In view of the defendant’s timely plea, the sentence will be reduced to 16 months’ imprisonment for each count.  As the defendant has complied with the compensation order, further reductions of 2 months will be given to each count, making it a 14 months’ imprisonment.

21.In light of the totality principle, I order 3 months of the sentence of Charge 2 to be served consecutively to the sentence of Charge 1.  On the other hand, 3 months of the sentence of Charge 3 will run consecutively to the sentence imposed on Charge 1 and Charge 2.

22.As a result, the total sentence imposed on the defendant is 20 (14 + 3 + 3) months’ imprisonment.