HKSAR v. Ho Tat Wai

DCCC 95/2020

[2020] HKDC 939

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 95 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.At the material time, Mr. Cheung was the owner of “X-Master OUTLET” situated at G/F, No. 165 Tung Choi Street, Mong Kok, Kowloon (“the Shop”). CCTV with recording was installed in the Shop.

3.At about 2300 hours on 9 December 2019, he put cash in the total sum of HK$18,720 into a white plastic bag and marked ‘$18,720’ on it. The white plastic bag together with a further sum of cash of HK$2,000 were put into an unlocked drawer in the cashier’s desk. He then secured the electrical roller shutter and left the Shop.

4.He returned to the Shop at about 0530 hours on 10 December 2019 and found the electrical rolling shutter half-opened. He saw the Defendant ransacking the drawer of the casher’s desk. He asked the Defendant what he was doing. The Defendant immediately fled. A struggle ensued between them in which the Defendant’s black jacket was pulled off. The Defendant then fled the Shop and ran towards Bute Street. He chased after the Defendant and shouted for assistance. At Tung Choi Street near Bute Street, he subdued the Defendant on the ground. A worker in the vicinity made a report to the police.

5.SPC 54880 arrived at the scene at about 0550 hours. He seized the Defendant’s black jacket at the doorway of the Shop. There was a white plastic bag with cash HK$18,720 inside, and cash of HK$2,000 in the pocket of the jacket. The Defendant was arrested for burglary.

6.When interviewed by the police under caution, the Defendant admitted the offence.

Mitigation

7.The Defendant is 42 years of age. He had a lot of criminal records. Relevant to our present case are his 10 records for theft in 10 court cases (sentenced in September 1993 to November 2017), and 2 records for burglary in one court case (sentenced in August 2001). He is a persistent re-offender for theft. This is an aggravating factor in his sentence today.

8.To his credit was the recovery of all stolen money upon his being caught while fleeing. This still qualifies as a mitigating factor.

Sentencing guidelines

9.In R v Wong Man [1993] 1 HKC 80, the Court of Appeal states that the proper starting point for non-domestic premises shall be 2 years 6 months’ imprisonment for a first offender of full age.

Sentencing this Defendant

10.On the facts I will consider 2 years 6 months’ as the starting point. Owing to his persistent re-offending for theft, I take 2 years 9 months as the starting point. After the one-third discount for his plea of guilty, the sentence is 22 months. I reduce it by 2 months due to the recovery of all money after he was subdued. The sentence is 20 months.