HKSAR v. Chan Yuk Leung

DCCC 391/2020

[2020] HKDC 700

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 391 OF 2020

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REASONS FOR SENTENCE

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1.The defendant, a 62-year-old man, pleaded guilty before me to one count of burglary; the burgled property is a supermarket in a shopping arcade in a public housing estate in Wong Tai Sin.

2.The supermarket is open between 8 a.m. and 10:30 p.m., and at the close of business hours, the main entrance of the supermarket would be closed and locked while the back door would just be closed for there are some employees working there through the night.

3.Shortly after mid-night on 26 February 2020, the defendant, who was walking around in the supermarket carrying with him a recycle bag, chanced upon a staff member who in fact caught him red-handed with a bag full of ice-cream of the supermarket - 18 pints of ice cream valued at $1,170. A report was made to the police.

4.He was arrested for burglary and in the subsequent interview with the police, he told the officers that he stole the ice cream for self- consumption because he was hungry at the time; he entered the supermarket through its side doors which were unlocked.

5.The defendant, no stranger to the court, has amassed 19 prior convictions in the past. Though burglary is his first offence, the majority of his records (twelve of them) are to do with petty thefts, in particular shoplifting. He had been sent to DATC for shoplifting both in 2007 and 2008.   

6.In mitigation, the court heard that the defendant was married but separated from his wife more than 10 years ago and they have an adult daughter who is now living in Thailand.

7.Counsel for the defendant, Mr Hung, apart from urging the court to give the defendant a full one-third discount for his timely plea, contended that the defendant is only a sneak thief and the instant case is no more than a case of opportunistic burglary – the defendant simply walked in the supermarket to steal therein. The court may in the circumstances depart from the usual sentencing guidelines, he submitted, citing in support the case of Cheung To Ming CACC 406/2005. 

8.Additionally, Mr Hung urged the court to take into account the defendant’s advanced age so as to allow some reduction of sentence as an act of mercy.

9.First of all, burglary, on the whole, is an opportunist crime in the sense that a burglar in the normal course of events would go for the easier pickings, and that in my view does not qualify as an opportunistic burglary so as to lessen his culpability and thus entitled him to a lower starting point.

10.Here I would like to quote certain passages from the case of Tsang Chun Yin CACC 170/2017 in which the Court of Appeal has this to say in commenting on the question of “opportunistic” burglary:

[49] Returning to the questions I posed, what is meant by an opportunistic offence and what is it about such an offence that lessens the culpability of the offender? If it means no more than that the offence was not premeditated then the extent to which that will lessen the culpability of the offender may very much depend on whether it is only an isolated lapse. Where, as here, it is not an isolated lapse what does it tell us about the offender? It may simply suggest that although the offender is not a professional criminal he is willing to resort to crime whenever the opportunity presents itself. Such an opportunistic offender is hardly likely to excite the sympathy of the court; indeed, for such an offender the court may well incline to regarding the offender as being in need of a deterrent sentence.

[50] Clearly, the most value that an opportunistic offender can have as mitigating the culpability of an offender is when the offender is involved in criminal conduct on only one occasion, the criminal conduct is unpremeditated and the criminal conduct took place in circumstances where the ease with it could be committed tempted the offender into an out-of-character lapse in judgement. The commonly cited examples are where there is an open window or door which “invites” entry and which reveals tempting property in plain view. The less the conduct can be portrayed in this way the less, it seems to me, it reduces the culpability of the offender.

11.Here in the instant case, the defendant lived in the same public housing estate where the supermarket was. Clearly, he had had a pretty good idea how the supermarket operated – the back doors were not locked at those hours. He brought along a recycle bag big enough for carrying 18 pints of ice cream, that suggested to me that there was some planning beforehand. I have no doubt that this was a premeditated crime.

12.Regarding the age of the defendant, he was born on 25 August 1957, only 5 days shy of his 63^rd birthday (as of today). Mr Hung fairly accepted that advanced age by itself is not a mitigating factor in principle, but he nevertheless urged the court to allow some discount in sentence on this point.

13.My short answer to that is that 63 is not old to me and in the antecedent statement, the defendant told the officer that his health condition was good.  Age does not seem to affect him significantly either physically or mentally, he is a healthy individual – that in my view does not qualify as a mitigating factor.

14.On the facts of the case, I take 30 months as the starting point, reduce it to 20 to reflect his timely plea. Judging from his criminal records, he is a repeat offender of similar offences to say the least, but given burglary being his first offence, I do not intend to enhance his sentence on this occasion.

15.There being no reasons for any further reduction of sentence, the defendant is therefore sentenced to 20 months’ imprisonment.