HKSAR v. Cheng Chi Cheong

DCCC 287/2020

[2020] HKDC 835

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 287 OF 2020

____________

____________

REASONS FOR SENTENCE

1.The defendant pleads guilty to one charge of burglary of a cooked food stall in Tsui Lam Market, contrary to section 11 of the Theft Ordinance[1] (charge 1) and one charge of loitering with intent to commit an arrestable offence, contrary to section 160 (1) of the Crimes Ordinance[2].

2.Full particulars of the offences are set out in the summary of facts admitted by the defendant. 

Burglary

3.In summary at about 2045 hours on 21 February this year the owner of the cooked food stall situated at Shop No. 58 on the 2nd Floor of the Tsui Lam Market checked his food stall, locked the cashier machine and the metal drawer underneath the cashier machine and then left. 

4.Access to the food stall is by a sliding door which was left unlocked.  Photographs of the food stall have been submitted to court showing the cashier machine, the metal drawer and the sliding door[3].

5.At 0730 hours the next morning Ms Leung, staff of the food stall, returned to the food stall to work.  Ms Leung was unable to unlock the metal drawer when she discovered signs of prizing on the metal drawer.  Ms Leung then notified the owner.  The owner of the food stall confirmed there was no loss and that the cost of repairing the damage to the metal drawer was $450. 

6.A report was made to the police in the afternoon.  At around 1510 hours the police, including PC 17569, arrived and viewed CCTV footage of the food stall.  The footage showed that at about 2345 hours the night before a male used a screwdriver-like tool to try prize open the metal drawer.  Having failed in his attempt to open the metal drawer the male left the food stall.

7.Screen captures taken from the CCTV footage showing the defendant trying to prize open the metal drawer have been submitted to court[4].

Loitering with intent to commit an arrestable offence

8.At about 2206 hours the same evening PC 17569 was on anti-crime patrol in the Tsui Lam Market when he saw the defendant, whose appearance resembled the burglar seen on the CCTV footage, acting furtively on the 2nd floor of the market and tampering with the CCTV camera outside the food stall at No. 58. 

9.A screen capture taken from CCTV footage showing the defendant tampering with the CCTV camera has also been submitted to court[5].

10.When the defendant left the market PC 17569 intercepted him at the entrance of the market.  Under caution and in two subsequent video recorded interviews the defendant, inter alia, claimed that he had been deceived leading to him owing a debt of $100,000 to a money lending company; due to financial difficulty he burgled the food stall on 21 February by sliding open the door and attempting to prize open the metal drawer with a sharpening steel and a hammer he had picked up in the market and on 22 February he tampered with the CCTV camera with a view to burgling the food stall. 

Mitigation

11.In passing sentence, I have carefully considered the oral and written submissions of Mr Kwan, including that the defendant, aged 31, is single, lives with his mother and younger sister and was working in a restaurant prior to his arrest[6]. 

12.I have read the mitigation letters written by the defendant in which he promises never to commit an offence again.  I have read the letters written by the defendant’s mother, his auntie and uncle, all asking for a lenient sentence.  The defendant’s mother has attended court today to show her support.  

13.I take into account that the defendant has no previous convictions for burglary.  The defendant does however have convictions for theft in 2014 when he was sentenced to 6 weeks’ imprisonment.  

14.I take into account the defendant committed the burglary because of financial difficulties having borrowed money to lend to a female he knew on social media[7].

Burglary

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

16.Mr Kwan submits that the burglary is at the lower end of seriousness and asks the court to adopt a starting point of 2 years and 6 months’ imprisonment[8].  I see no reason to depart from the guidelines.  Giving the defendant full credit for his plea of guilty reduces the sentence to 1 year and 8 months’ imprisonment.     

Loitering with intent to commit an arrestable offence

17.The maximum sentence is a fine of $10,000 and imprisonment for 6 months.

18.In HKSAR v Yeung Kwan Hung the applicant was seen pulling the handles of two vehicles which were parked in meter-parking spaces.  Upon arrest and caution, the applicant admitted that he was trying to gain access to the parked cars to see if there was anything to steal.  The Court of Appeal considered that a starting point of 3 months was appropriate[9].

19.The offence of burglary is a more serious arrestable offence than theft from cars.  I am satisfied the proper starting point after trial is 4½ months’ imprisonment.  Giving the defendant full credit for his plea of guilty reduces the sentence to 3 months’ imprisonment.

Totality

20.In HKSAR v Yeung Kwan Hung the Court of Appeal ordered that the sentence for loitering was to be served consecutive to the sentence imposed for offences of burglary.

21.Taking into account the defendant was loitering at the food stall he burgled the day before, I am satisfied a partly consecutive sentence only is appropriate.  I order 1 month consecutive and 2 months concurrent making a total sentence of 1 year and 9 months’imprisonment, which I am satisfied properly reflects the defendant’s overall criminal culpability on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[10].

Sentence

22.The defendant is convicted and sentenced as follows:

Charge 1 – 1 year and 8 months’ imprisonment; and

Charge 2 – 3 months’ imprisonment with 1 month consecutive and 2 months concurrent to charge 1;

The total sentence to be served by the defendant is 1 year and 9 months’ imprisonment.