HKSAR v. Cheung Ka Man

DCCC 486/2020

[2020] HKDC 826

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 486 OF 2020

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REASONS FOR SENTENCE

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1.Defendant is convicted on his own plea and agreement to amended summary of facts to a charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance.

2.The Grand Cinema located in Elements, Level 2, No 1 Austin Road West, Yau Ma Tei, Kowloon, Hong Kong (hereinafter referred to as “the Cinema”).

3.On 4 September 2018, the Cinema closed at about 0030 hours and the gate at the main entrance of the Cinema on the 2^nd floor was closed. However, there is a narrow space, about a man’s width, next to the escalators connecting the Cinema to the 1^st floor of the Elements.  The Elements would also set up a black retractable belt to block the escalator on the 1^st floor leading to the Cinema from time to time.

4.The manager of the Cinema discovered at about 0905 hours on 4 September that places were forced open, including one of the drawers located at the entrance of the Cinema, five cashiers located at the tuck shop of the Cinema, four staff lockers located at the pantry (“the Pantry”) and the wooden door at the manager room of the Cinema.  There was no loss at the places save and except $100 worth of coins in the manager room of the Cinema.

5.The defendant’s palm prints were retrieved from a cashier located at the Pantry of the Cinema.

6.Defendant was arrested later.  On 9 March 2020 he admitted in a cautioned video-recorded interview, inter alia, that:-

(a)  he entered the Cinema by walking past two strings blocking the main entrance on 4 September 2018;

(b)  he stole $100 cash made up of coins in a room at the Cinema;

(c)  he arrived at this room by taking the escalator after bypassing objects blocking the main entrance of the Cinema. The door of the room was not locked at the time; and

(d)  he also admitted he was ransacking and looking for valuable items at the material time.

7.CCTV located at the Pantry of the Cinema captured the incident on the same day that at around 0155 hours on 4 September, the defendant entered the Pantry via the narrow space next to the kitchen, he searched and ransacked the cashier, the Pantry, the kitchen and the restroom, and he later left the Pantry via the narrow space next to the kitchen.

Criminal record

8.Defendant has 33 previous criminal records, involving 47 charges of which 30 are related to dishonesty and 11 are similar.

Mitigation

9.Defendant is now aged 42.  He is single.  He received education up to Form 3 level in Hong Kong. 

10.He was unemployed at the time of arrest and he was receiving Comprehensive Social Security Assistance at around $2,400 per month.

11.Defence counsel submitted that according to the R v Wong Man, CACC 372/1992, in cases involving burglary of non-domestic premises, in the absence of aggravating features or mitigating factors, the proper starting point is 2½ years’ imprisonment.

12.Due to the defendant’s timely plea, it was submitted that he should be entitled to a one-third sentencing discount. 

13.It is also said that the defendant committed the present offence due to financial difficulty as his employer restaurant where he was working closed in mid-2018.  As a result, he was unemployed and could not find a job and he stupidly committed the present offence. 

14.He urges this court to impose on him a sentence as lenient as possible. Regarding his dishonesty related convictions of which he would be considered a repeated offender, he urges this court to impose and to enhance the sentence as little as possible.  He also asks this court to consider the stolen cash was only $100.

Discussion

15.This is a case of burglary involving non-domestic premises of which the usual sentencing starting point is one of 30 months’ imprisonment. 

16.It is clear from the defendant’s very poor criminal record that he is, in terms of crimes of dishonesty, a persistent offender.  This is an aggravating factor and the starting point is therefore enhanced by 6 months. 

17.It is noted however that the degree of sophistication in gaining access to the premises, including that of the room where the $100 was placed, is low. The amount of property stolen is also very small, and for this reason the court will adjust downward the sentencing starting point by 4 months to 32 months.

18.This court has also considered the mitigation submission by defence counsel and considers the most valid mitigating factor is that of the defendant’s own guilty plea, of which he is entitled to a full one-third sentencing discount. 

19.Accordingly, the defendant is sentenced to 21 months and 10 days’ imprisonment.