HKSAR v. Chan Woon Ming

DCCC 1023/2018

[2021] HKDC 481

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1023 OF 2018

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REASONS FOR SENTENCE

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1.Mr Chan pleaded guilty before me to Charge 1 of Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210; and Charge 2 of Failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap  221.

2.Particulars of Charge 1 are that he, on 3 July 2018, in Hong Kong, having entered as a trespasser part of a building known as “MCC Panel Room”, the office of Deportation Section, Immigration Department, 5^th Floor, Ma Tau Kok Road Government Offices, No 1 Ma Tau Kok Road, Ma Tau Wai, Kowloon, stole therein one reflective vest.

3.Particulars of Charge 2 are that he, on 24 June 2019, in Hong Kong, being a person admitted to bail, without reasonable cause, failed to surrender to custody as had been appointed by a court.

Facts admitted by Mr Chan

4.“MCC Panel Room” (“the Room”) was a room situated in the office (“the Office”) of the Deportation Section, Immigration Department on 5/F of a government building at Ma Tau Kok Road.  The door of the Office had a password lock and was printed with the words “No unauthorized entry”.

5.On 3 July 2018, the password lock malfunctioned.  There were some maintenance works in the building.  That morning, PW1, an electrician, was working in the Room.  At about 9:30 am, Mr Chan who was someone unknown to PW1 entered the Room.  Mr Chan took a reusable bag from the balcony, then turned around and searched another bag hung on the door.  PW1 asked Mr Chan what he was doing but Mr Chan did not reply.  Mr Chan then picked up a hammer from the floor and put it into the reusable bag, before leaving the bag on the floor. Mr Chan next took a reflective vest (worth $100) of PW1’s company with the name of the company “Tyson” printed thereon from the top of a meter box and left.

6.The staff were alerted and they located Mr Chan on the roof of the building wearing the vest.  Mr Chan was escorted to the staff office for identity check but while the check was going on, Mr Chan used the opportunity to leave stealthily.

7.In the afternoon of the same day, patrolling police saw Mr Chan in the vicinity with the vest on who kept looking up the scaffolding along the street.  Upon interception, Mr Chan told the officer that he was a renovation worker at the Immigration Department at Ma Tau Kok Road.  Mr Chan was escorted back to the building for confirmation.  There, the staff told the officer what happened in the morning and PW1 confirmed the vest was a piece of stolen property.

8.Mr Chan was arrested and the vest was recovered.

9.In a cautioned interview conducted one month later, Mr Chan admitted that he stole the vest because he had no money and his mother had a stroke; and because he needed a construction job.

10.On 24 January 2019, the District Court set down the date of 24 June 2019 for a trial of Mr Chan for burglary as described above and he was allowed bail.  However, on the day appointed, Mr Chan failed to turn up and so a warrant for his arrest was issued.

11.On 17 November 2020, Mr Chan was located and arrested and the warrant was executed against him.  On the next day, he stated under caution:—

(a)  Between 24 June 2019 and 17 November 2020, he worked as a part-time chef and had to work 10 or more hours every day;

(b)  He did not attend court because he wanted to work more;

(c)  He had to pay a monthly maintenance of $3,000 to his former wife; and

(d)  His mother suffered a stroke in 2016 so he wanted to earn more money for her.

Criminal record

12.Mr Chan has 13 previous convictions collected between 2001 and 2017 six of which were Theft Ordinance offences though without burglary.  The last of those six was in 2003.

Antecedents

13.Mr Chan is aged 33 (30 at the time of the burglary offence), educated to but did not complete F3 level, was working as a cook at the time of arrest.  Mr Chan is divorced, has a daughter aged 10 and was living with his mother and younger brother in To Kwa Wan.

Mitigation

14.Mr James Cheng of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Chan.

15.The following is a summary of the mitigation submissions.

16.Before re-arrest, Mr Chan lived with his mother who works part-time as a restaurant food server.  He also paid a monthly maintenance of $3,000 to support his ex-wife and her daughter (aged 13).  In 2017, his mother suffered a stroke and is presently in ill-health.  Before re-arrest, Mr Chan was a kitchen cook.

17.As for the burglary charge, Mr Chan pleaded guilty late but he still asks for a discount.  As for Charge 2, he makes a timely plea and asks for a full discount of sentence.

18.Mr Cheng referred to HKSAR v Cheung To Ming, CACC  406/2005, and HKSAR v Sim Ka Wing, CACC 450/2000, and asked the court to regard Mr Chan’s culpability as akin to that of a “sneak thief”.

19.It was submitted that Mr Chan absconded because he was in fear that a long incarceration would render his family in financial difficulty and he wanted to make and save more money for the family first.

20.Although Mr Chan has a brother, he has little means to support their mother.

21.Mr Cheng submitted three mitigation letters written respectively by Mr Chan himself, his mother and a social worker (with English translation, where applicable).  The contents are generally that Mr Chan is remorseful and asks for a lenient sentence; that he has finally come to his sense of right and wrong; and that he had been a hardworking chef and aspired one day to become a restaurant owner.  Mr Chan’s mother and the social worker are both in court to give their support.

22.Upon enquiry by the court, Mr Cheng submitted that Mr Chan stole the vest because he wanted to use it as part of the gear for work as a part-time construction site worker not knowing at the time that it carried the name of “Tyson”; that Mr Chan wanted to earn extra income as such a worker.

Sentence

23.I have considered the mitigation submissions.

24.The usual sentence for a burglary of non-domestic premises is 2½ years’ imprisonment.

25.In this case, I am satisfied the circumstances of the burglary are such that Mr Chan was an opportunistic burglar.  I also note the small value of the stolen property involved which was fully recovered.  For these reasons, I shall lower the starting point by 6 months.  Although Mr Chan has a long string of Theft Ordinance convictions in his records, they were all in or prior to 2003. I will not enhance his starting point on this ground.

26.Initially, Mr Chan indicated a not guilty plea to the burglary charge on Plea Day as a result of which a date was fixed for trial.  On the scheduled first day of trial, he did not turn up wasting the 3 days already fixed and also the time of the prosecution witnesses.  Only on re-arrest and further appearances in the Plea Court did he indicate that he would plead guilty.  I have had regard to the authority of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 and adjudge that Mr Chan is only entitled to a discount of 16.67% for his very late plea.

27.For Charge 2, the period during which Mr Chan was at large was almost 17 months.  I am satisfied that a sentence of 6 months after plea would meet the culpability involved.

28.There is no other mitigating factor of sufficient weight to justify any further discounts.

29.The two offences are completely separate and call for consecutive sentences, subject only to the principle of totality.

(Mr Chan, please stand)

30.For Charge 1, Mr Chan shall serve a sentence of 20 months’ imprisonment.  For Charge 2, he shall serve a sentence of 6 months’ imprisonment.  I order that 3 months of the sentence for Charge 2 to run consecutively to that for Charge 1.  The aggregate sentence is therefore 23 months’ imprisonment.