HKSAR v. Tsang Kwok Chun

DCCC 556/2020

[2021] HKDC 24

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 556 OF 2020

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Reasons for Sentence

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1.The defendant has pleaded guilty to one offence of burglary which involved the theft of two bottles of wine from a ParknShop supermarket in Tsuen Wan.  

2.The offence occurred at 7.25 am on 5 March this year, which was shortly before the store opened for business.  At the time, the roller shutter of the store was partly deployed at a half-close position.  The defendant was seen inside the supermarket holding two bottles of wine valued at HK$270.  He tried to escape, but was caught and the bottles of wine were recovered. 

3.The defendant is aged 55.  He was educated to Form 4 in Hong Kong, has worked as a casual worker.  He lives alone now, has a total of some 37 conviction recordings, no offences of burglary but has a number of shoplifting offences and other theft offences for which he has been sentenced to imprisonment.  Based on the defendant’s criminal record, you could say he is a persistent petty criminal. 

4.The defendant has been convicted on his own plea of a non-domestic burglary.  The normal sentence for such a burglary for a person of clear record after trial would be a starting point of 30 months’ imprisonment.

5.However, the court can depart from that guideline in less serious cases.  These cases often have been described as sneak thief cases.  The main case in respect of this particular departure from the guideline is the case of HKSAR v Cheung To Ming [2006] 2 HKLRD 259. That was where there had been an entry into an education centre in Mai Po and some instant noodles and the like had been stolen which the defendant consumed.  In that case a starting point of -- it was 18 months’ imprisonment was adopted instead of the normal 30 months’ imprisonment. 

6.This case is of a similar nature.  It is a sneak thief case.  The supermarket was not open.  That is why the defendant became a trespasser.  The defendant was able to enter the premises without breaking into them.  He went through the partially rolled-up roller shutter. He took two items for his own consumption of relatively low value and left without paying.  The defence say, in reality, this is not really very different from a shoplifting case.  But the courts have adopted a different approach to sentencing because of the risk of entering what is a closed premises as opposed to an open premises.  Each case for determination of sentence must depend on its own facts.  However, the court can depart in this case on these facts from the normal 30 months starting point for a non-domestic premises.

7.I classify this as a walk-in sneak thief type of burglary.  It was opportunistic, unsophisticated, the value of goods were low.  The only actual aggravating factor in this case is the defendant has a number of convictions for dishonesty, particularly theft, over nine previous theft convictions.  The essence of this case is theft, whilst being a trespasser on the premises.  So that is an aggravating factor in this case and can lead to an increase in the starting point that I will adopt.  

8.In this case, having regard to the essential petty nature of the case, I am going to take a starting point of 12 months’ imprisonment and increase that by 3 months for the aggravating factor of the defendant’s previous poor criminal record.  That leaves with a starting point of 15 months’ imprisonment.  The defendant is entitled to one-third deduction from that for his plea of guilty.  It leads to a final sentence of 10 months’ imprisonment for the defendant.