HKSAR v. Lee Chun Cheung

DCCC 250/2020

[2020] HKDC 933

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 250 OF 2020

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Reasons for Sentence

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Charge

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

Facts

2.The offence location was a restaurant situated at Ground Floor, Star Mansion, No. 3 Minden Row, Tsim Sha Tsui, Kowloon, in Hong Kong (“Restaurant”). Cheung (“PW1”) was the branch manager of the Restaurant. The Restaurant was temporarily closed starting from 15 February 2020 due to the outbreak of Coronavirus Disease (COVID-19). The Restaurant had one main entrance and a rear gate. There was a fire exit door past the rear gate leading to the kitchen of the Restaurant, which was unlocked at all times in compliance with fire safety regulations. CCTV was installed inside the Restaurant but was no longer functioning as the power supply had been switched off.

3.At around 0051 hours on 9 March 2020, DPC 18113 (“PW2”) was viewing the CCTV footage in Chungking Mansions for another unrelated Criminal Damage case when he saw the Defendant climbing down a lamppost AF 3173A towards the ground. PW2 immediately notified his colleague PC 25536 (“PW3”) about the incident and went outside Chungking Mansions to follow the Defendant. At around 1:00 a.m., the Defendant was intercepted outside Exit K of Tsim Sha Tsui MTR station. He was carrying a golden insulation bag with the name of the Restaurant printed thereon. Upon search, the following items were found:-

Inside the insulation bag

(a)  One glass container with lid (valued at HK$200);

(b)  Two bags (valued at HK$150);

(c)  One thermometer (valued at HK$650);

(d)  Two cans of soft drinks (valued at HK$30);

Inside the Defendant’s right front trousers’ pocket

(e)  One spark lighter (valued at HK$45);

(f)  One chop (valued at HK$30);

(g)  One brooch (valued at HK$50); and

Inside the Defendant’s left back trousers’ pocket

(h)  One calendar (valued at HK10).

4.PW1 subsequently confirmed that the insulation bag (valued at HK$50), together with the above items (a) to (h) belonged to the Restaurant. The glass container was placed on the cashier counter; the bags, thermometer, brooch, and calendar were all placed inside the drawers under the cashier counter; the soft drinks were placed inside the storage area; the spark lighter and the chop were placed inside the drawers of the pantry; and the insulation bag was placed on a counter inside the kitchen.

5.The total value of the stolen property was around HK$1,215.

6.The Defendant was then arrested. Under caution, he said that he thought the Restaurant had been closed down, therefore he went there and took away some items.

7.A video-recorded interview was conducted with the Defendant on the following day, during which he admitted, inter alia, the following under caution:

(a)  At around 11 p.m. on 8 March 2020, he went to the back alley of Star Mansion for scavenging. He went into the back alley via a staircase in Star Mansion, but he later found that the door to the staircase had been locked and he could not leave so he had to look for a way out;

(b)  He entered the Restaurant to see if there were any exits, the door to the kitchen was unlocked. He did not know where the place was at first but after he walked into the kitchen, he knew it was the Restaurant;

(c)  He walked around inside the Restaurant and it was dark, he saw the tables were covered and moved to the side so he thought the Restaurant had been closed down. He could not find any exits so he returned to the kitchen and saw some items inside the rubbish bin. He thought those items were abandoned so he picked up those he found useful and put it into a broken bag he took from the table beside the rubbish bin;

(d)  He left the Restaurant but still could not find a way out so he slid down a lamppost onto the back alley between Star Mansion and Chungking Mansions. He then walked to Nathan Road and was on his way to the MTR station when he was intercepted;

(e)  He was the person as captured by the CCTV of Chungking Mansions at around 00:51 a.m. on 9 March 2020, he was sliding down the lamppost while carrying the bag at the time; and

(f)  The clothes seized by the Police following his arrest was the clothes he was wearing at the material time.

8.CCTV of Chungking Mansions captured the Defendant sliding down from lamppost AF 3173A at around 0051 hours on 9 March 2020. He was masked. He was wearing a cap and carrying a bag. He then walked along the back alley towards Nathan Road. CCTV of No. 26 Nathan Road captured him walking along the back alley and onto Nathan Road.

9.At the material times, the Defendant entered the Restaurant as a trespasser and stole therein the 9 items of property belonging to the Restaurant.

Mitigation

10.The Defendant is 47 years of age, of lower secondary education. He claimed to be a marble decoration worker at the time of arrest. He had a lot of records but only one relating to dishonesty or burglary, i.e., one aggravated burglary in 2000. A single similar record 20 years ago does not have the effect of aggravating his sentence here.

Sentencing considerations

11.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 2 ½ years’ imprisonment for a first offender of full age.

12.As explained by Macdougall JA in HKSAR v Sim Ka-wing, CACC 450/2000, such a starting point has already included certain basic planning. The sentence can be reduced in the case of a sneak thief.

Sentencing this Defendant

13.The Restaurant was apparently unmanned and the property stolen was not of great value. The Defendant was an opportunist who grabbed hold of sundry things as he examined the cashier counter, the storage area, the pantry and the kitchen Restaurant before exit. I take 18 months as the starting point. After the one-third discount for the plea of guilty, the sentence is 12 months.