HKSAR v. Kok Ping Cheung

DCCC 1058/2020

[2021] HKDC 539

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1058 OF 2020

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to two charges of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.Full details of the offences are set out in the facts admitted by the defendant.  In summary, this is a burglary case which took place in one non-domestic premises on different dates.

3.The defendant on two different days, namely 3 July 2020 and 2 August 2020 entered the same Restaurant (hereinafter called “the Restaurant”) to steal cash of HK$36,400 under the 1^st charge and 51 keys under the 2^nd charge.

4.In gist, the defendant had been employed by the Restaurant as a part-time waiter since mid-March 2020 and he has stopped working in the Restaurant since 4 July 2020.

5.The opening hours of the Restaurant are 12 noon to 12 midnight, and only the owners, managers and head chef of the Restaurant possessed the key to the main entrance.

6.At around 12:30 pm on 3 July 2020, one of the owners Mr Ko was informed that cash of HK$36,400 was missing from the cash register placed at the cashier near the main entrance of the Restaurant.

7.Mr Ko checked the CCTV of the Restaurant and found that after the head chef entered the Restaurant, the defendant who was not required to work on 3 July 2020 entered the Restaurant through the main entrance and went to the cashier at 10:40 am and operated the cash register and took away some cash from it at 10:42 am on 3 July 2020.

8.At around 9:45 pm on 2 August 2020, the manager found that the spare key to the main entrance of the Restaurant was missing, and cash register was turned on. There was sign of ransacking at the cashier.

9.Mr Ko checked the CCTV and found that the defendant entered the Restaurant through the main entrance at 8:16 am on 2 August 2020, and ransacked the cashier twice and attempted to open the cash register with a number of keys at 8:30 am on the same day.

10.At around 10:15 am on 2 August 2020, the police intercepted the defendant in Tsim Sha Tsui MTR Station and found the defendant in possession of a transparent resealable plastic bag containing 50 similar keys (hereinafter called “E1-E50”).  The police further found inside the right front pocket of the defendant’s pants 2 similar keys (“hereinafter called E51-E52”).

11.Mr Ko confirmed that E51 was a spare key to the main entrance of the Restaurant and it was originally placed in a drawer at the cashier and that E52 was also the spare key to the main entrance of the Restaurant and it was placed behind the photo frame outside the Restaurant by Mr Cheng, one of the managers of the Restaurant at around 10 pm on 1 August 2020.

12.Mr Cheng confirmed that the transparent resealable plastic bag containing E1-E50 was originally placed inside a drawer at the cashier of the Restaurant, and E1-E50 were keys to the staff lockers of the previous restaurant which occupied the Restaurant, and the lockers were gone but the keys were still kept in the Restaurant. 

Criminal record and background of the defendant

13.The defendant is 33 years old.  He is single and received education up to Form 5 level.

14.Mr Hung stated that as the parents of the defendant had divorced about some 15 years ago, the defendant used to live with his mother and younger sister.

15.I was told that the defendant’s father (aged 56) is a taxi driver and his mother (aged 56) is a cleaner and she earns about HK$15,000 per month.  His younger sister (aged 31) is single and works as a clerk earning about 10 odd thousand dollars per month.

16.Mr Hung also stated that prior to the remand, the defendant worked as a waiter in a restaurant for about 6 years, earning about HK$20,000 per month, and the defendant used to pay his mother a monthly sum of about HK$5,000 to HK$6,000 as contribution to the family expenses.

17.The defendant had 4 criminal records with no similar offence and among these convictions, he had 1 conviction involving dishonesty in 2013.

Mitigation

18.In mitigation, Mr Hung emphasized the fact that the defendant had pleaded guilty to the offence at the earliest opportunity and is entitled to the full one-third discount.

19.Mr Hung submitted that about a month prior to the offence under 1^st charge, the defendant started to work in the Restaurant as a part-time waiter at an hourly wage of HK$55, and that he usually worked in the Restaurant between 6:00 pm to 11:00 pm but he did not need to work every day.

20.Mr Hung stated that on the day in question, the defendant was not required to work in the Restaurant but he just went back there to pick up his keys to home which he left in the locker of the Restaurant on the night before.

21.Mr Hung submitted that as the Restaurant opened for business at 11:00 am every day, by the time of the offence someone has already arrived at the Restaurant, unlocked its main door and prepared for its opening and that the defendant was able to gain entry to the Restaurant as a result.

22.Mr Hung also submitted that while the defendant was inside the Restaurant, the defendant noticed that there was no one in the cashier counter and out of momentary greed, the defendant committed the offence under the 1^st charge.

23.Mr Hung further submitted that as for the 2^nd charge, the defendant committed the offence for economic reasons.  Mr Hung stated that when the defendant was at the cashier counter to look for something valuable to steal, the defendant suddenly heard someone opening the door, and the defendant hurriedly took away a bag of keys without checking its content.  He was about to discard those keys but has been arrested before he was able to do so.

24.Mr Hung stated that the defendant is aware of the sentencing guidelines laid down by the Court of Appeal for burglary of non-domestic premises.  Nonetheless, in mitigation, the defendant asked the Court to take into account of the totality principle and to order part of the prison terms under the two charges to run concurrently as far as possible.

25.In court, Mr Hung also stated that the defendant committed the 1^st offence in breach of trust, however, the defendant did not make use of any insider information to commit the said offence. 

Sentencing considerations

26.In the case of HKSAR v Sim Ka Wing CACC 450/2000 (30 May 2001, unrep), it was held that the proper starting point in cases of burglary of non-domestic premises with no aggravating or mitigating features is 2½ years’ imprisonment.  Such burglaries will involve a measure of planning and a degree of premeditation is already built into this starting point: see page 5.

27.In the present case, the summary of facts admitted by the defendant revealed that the defendant had been employed by the Restaurant as a part-time waiter since mid-March 2020 and the defendant had stopped working in the Restaurant since 4 July 2020, ie the next day of the first offence.

28.In the summary of facts, the defendant also admitted that at the material times, he entered the Restaurant as a trespasser and stole cash of HK$36,400 under the 1^st charge.

29.My view is that the defendant committed the first offence while he was still under the employment of Mr Ko and therefore this is a breach of trust case, and I shall treat it as an aggravating factor to the 1^st charge.

30.Taking into account of the aggravating factor in the present case, and what had been submitted on behalf of the defendant, I consider a starting point of 3 years’ imprisonment to be appropriate to the 1^st charge.

31.One-third discount is given to the defendant as he indicated his guilty plea at the earliest opportunity.  The sentence is therefore reduced to 24 months’ imprisonment for the 1^st charge.

32.As to the 2^nd charge, I consider that a starting point of 2½ years’ imprisonment is appropriate.  One-third discount is given to the defendant as he indicated his guilty plea at the earliest opportunity.  The sentence is therefore reduced to 20 months’ imprisonment.

33.Taking into account of the totality principle, I order that 4 months of 2^nd charge to be run consecutively to 1^st charge.

34.There being no further valid mitigating factors justifying further reduction in sentence, as such, the total sentence imposed on the defendant for both charges he pleaded guilty to is one of 28 months’ imprisonment.