HKSAR v. Wong Yui Kim

DCCC 806/2020

[2021] HKDC 150

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 806 OF 2020

________________________

________________________

________________________

Reasons for Sentence

________________________

1.The defendant pleaded guilty to one count of burglary and the particulars are that, on 1 July 2020, he entered as a trespasser a Thai restaurant in Metro Town Shopping Mall in Tseung Kwan O, New Territories, and stole a box containing $400 in tips and a key. 

Facts of the case

2.The facts are very straightforward.  This restaurant has no doors or security measures to lock it up.  It is an open plan style Thai restaurant inside a shopping mall.  The last employee to leave every night would hang up a retractable belt across the entrance to stop anyone entering and to indicate the restaurant was closed.  There was a box containing tips padlocked and placed under the cashier counter.

3.In the morning of 3 July 2020, the manager of the restaurant came to work to find the box containing the tips missing.  He made a report to the police.

4.The CCTV of the restaurant captured the defendant entering the restaurant at 1.42 am on 1 July 2020.  He is seen ransacking the cashier counter drawers for a few minutes before he takes away the box containing tips.  He leaves the restaurant with it hidden under his T-shirt.

5.After investigating the defendant and his movements captured by various local CCTV camera, he is arrested on 6 July 2020.  He admits under caution that he stole the box containing tips because he had no money.  He admitted that he had thrown away the key inside the box and spent all of the stolen cash already.

6.In a further video-recorded interview the defendant under caution admitted that he was walking through the shopping mall in the early hours of the morning when he noticed that the restaurant was only secured by a retractable belt across its entrance.  He took the opportunity to enter the premises and stole the box containing around $400 cash which he had spent on food and transportation.  It was not a large amount and there was no damage to the premises.

Mitigation

7.The defendant is not a man with a clear record.  He has 16 previous convictions from 2008 and almost all relate to offences of dishonesty.  This is his first burglary conviction.  Ms Lai has said all she can say on behalf of the defendant.

8.He is now 28 years old, married, was unemployed at the time of his arrest and living with his mother and sister.  He does have a girlfriend and a 2-year-old daughter who live elsewhere.  I have read the defendant’s letter addressed to me.  The defendant’s best mitigation is his plea of guilty.  He had lost his job and steady income a few months before the burglary which meant he was financially strapped.  He had previously supported his mother and his girlfriend and child when he had an income.  He was desperate but unable to find another job.

9.When he was walking around that morning, he was tempted by the ease in which he could enter the Thai restaurant to see if there was anything of value to steal.  In mitigation it has been suggested that his crime was opportunistic as opposed to planned.  He did not need to break into the premises but only remove the retractable belt to enter.  It has been submitted I can treat him as an opportunistic burglar who walks into open premises looking for something valuable to steal.  It is submitted I can depart from the normal 2 years and 6 months’ starting point to reflect the lack of planning, premeditation and the opportunistic circumstances leading to this offence.

Reasons for sentence

10.It is the norm to consider a starting point of 2 years and 6 months’ imprisonment for a non-domestic burglary where there is no aggravating or mitigating factors to consider.  Although he has committed many offences in the past, I do not take that to be an aggravating factor.  This is his first burglary; he is not yet a persistent and prevalent offender.

11.I have considered the facts and mitigation put forward.  The defendant has pleaded guilty at the earliest opportunity and is entitled to a full discount of 10 months for his plea. After that discount is applied to the starting point of 2 years and 6 months, the term of imprisonment is reduced to 1 year and 8 months.

12.I accept the mitigation that the burglary was opportunistic with the defendant having very easy access to the cashier counter.  I will reduce that term of imprisonment by a further 2 months to reflect this factor.  Accordingly, the defendant is sentenced to 1 year and 6 months’ imprisonment.