HKSAR v. Tsang Sui Lun

DCCC 484/2020

[2020] HKDC 1209

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.484 OF 2020

-----------------------------------

-----------------------------------

---------------------------

Reasons for Sentence

----------------------------

Charge

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

Facts

2.This is a burglary case which took place on 23 Mar 2020 in a snack shop by the name of “Yuen Gi May” located on 1st Floor, Dragon Centre, Yen Chow Street, Sham Shui Po, Kowloon (“Offence Location”).

3.The Offence Location operated daily from 1100 to 2100 hours.  There was an entrance to the Offence Location, where a roller shutter was installed and would be shut after business hours. During business hours, there was a counter blocking the entrance, and the counter consisted of a foldable table above a gate. Customers are not permitted to enter the Offence Location, and may only transact over the counter with the staff.

4.On 23 Mar 2020, Madam CHEUNG (“CHEUNG”) was at work alone in the Offence Location.  Around 1640 hours, CHEUNG needed to go to toilet.  CHEUNG asked a staff member of the shop next to the Offence Location, i.e., Madam POON (“POON”) to help guard the Offence Location during her absence.  CHEUNG thus went to toilet without shutting the roller shutter.

5.Around 1645 hours, CHEUNG returned to the Offence Location.  She was told by POON that after CHEUNG had left the Offence Location, an unknown male (later known to be the Defendant) sneaked into the Offence Location and stole therein.  When trying to flee, he was intercepted by POON and two security guards.

6.CHEUNG found the following items missing from the Offence Location:

(a) Two SAMSUNG mobile phones (total worth HK$2,000) with two phone cases;

(b) Cash of about HK$1,050; and

(c) A coins box.

7.The case was reported to the police.  The Defendant was arrested by police.  Under caution at the scene, he admitted the offence.  Upon search, the following items were found on him:

(a) Two SAMSUNG mobile phones with two phone cases;

(b) Coins of HK$138.5;

(c) Banknotes of HK$960; and

(d) A coins box.

8.In his video-recorded interview under caution, he stated that as he went past the Offence Location, no one was inside the Offence Location, so he sneaked in with a view to steal and ended up stealing the items as recovered by the police. 

Mitigation

9.The Defendant is 41 years old.  He was a part-time delivery man before arrest.  He had 4 records of burglary (first one sentenced to 12 months in 2011, the second sentenced to 3 years in 2014, the last two together sentenced to 20 months in 2019).  His counsel Mr. Lee accepts that this repeat offending shall be an aggravating factor in his present sentence.

10.The sentencing guidelines indicate 30 months’ imprisonment for a first offender of full age who commits a burglary on non-domestic premises.  According to the Court of Appeal in HKSAR v Sim Ka Wing CACC 450/2000, this sentence already includes a certain degree of planning.  A lower starting point is applicable for an opportunistic theft.

11.In HKSAR v Cheung To Ming [2006] 2 HKLRD 259, the defendant entered the kitchen at Mai Po Marshes Wildlife Education Centre and Nature Reserve.  There was no evidence that he had made a forced entry.  His uncontroverted admission was that he had entered and consumed two packets of noodles found there.  The Court of Appeal reduced the sentence from 20 months to 12 months on his plea of guilty, reflecting a starting point of 18 months “having regard to the most unusual circumstances” of the way the burglary was committed. 

Present sentence

12.This is an opportunistic burglary.  I consider a starting point of 21 months appropriate on the facts.  I increase it by three months for stronger deterrence for the Defendant’s repeat offending.  From a starting point of 24 months, I reduce it by 8 months for his plea of guilty and one month for the recovery of all stolen items.  The sentence is 15 months.