HKSAR v. Chan Wai Sang (also known as Chan Wai Sing, Chan Ah Shing and Li Kwok Fai)

DCCC 992/2020

[2021] HKDC 593

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 992 OF 2020

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REASONS FOR SENTENCE

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1.Mr Chan pleaded guilty before me to 4 charges of Burglary, all contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.Particulars of Charge 1 are that he, on 28 June 2020, in Hong Kong, having entered as a trespasser part of a building known as “SALON M JOICO”, Shop No 201, 2^nd Floor, Wo Che Estate, Sha Tin, New Territories, stole therein cash of $40,530 Hong Kong currency.

3.Particulars of Charge 2 are that he, on 4 July 2020, in Hong Kong, having entered as a trespasser part of a building known as “Bread City Cake Shop”, Shop No 311, 3^rd Floor, Heng On Shopping Centre, Heng On Estate, Ma On Shan, New Territories, stole therein one safe containing cash of about $3,000 Hong Kong currency.

4.Particulars of Charge 3 are that he, on 9 July 2020, in Hong Kong, having entered as a trespasser part of a building known as Shop No A3a, Ground Floor, Kingswood Richly Plaza, No 1 Tin Wu Road, Tin Shui Wai, New Territories, stole therein cash of $290 Hong Kong currency, two plastic folders and some documents.

5.Particulars of Charge 4 are that he, on 10 July 2020, in Hong Kong, having entered as a trespasser part of a building known as Shop Nos 9, 34 and 35, Ground Floor, Yuet Wu Villa Commercial Centre, No 2 Wu Sau Street, Tuen Mun, New Territories, stole therein cash of $550 Hong Kong currency.

Facts admitted by Mr Chan

Charge 1

6.The subject salon closed daily at 8 pm with the rolling shutter locked. On 28 June 2020, around 9 pm, Mr Chan wearing a cap and a face mask knelt down at the entrance and then entered the salon and ransacked the cashier counter before leaving shortly after by taxi.  The next day, the person in charge came back and discovered cash of $40,530 previously placed inside the drawers at the cashier counter had gone missing.  Case was reported.

Charge 2

7.The subject cake shop closed at 8 pm daily with front rolling shutter and rear door locked.  On 4 July 2020, at almost 10 pm, Mr Chan was inside the shop and ransacked the cashier counter and with a towel picked up from the kitchen opened the drawers.  He then took out the shop safe from under the cashier counter and took it away wrapped in a black plastic bag.  He then carried the safe away by using a trolley.

8.The next day, the owner of the shop returned and found the safe (valued at $2,000) missing together with the cash of about $3,000 placed inside the safe.  Case was reported.

Charge 3

9.On 9 July 2020, the subject boutique closed at about 5:30 pm.  Shortly before 11 pm, Mr Chan knelt down before the rolling shutter at the entrance for a while before pulling it up and entered the boutique; and two minutes later he left with a plastic folder containing some documents sticking out from the cross-body bag he was carrying.

10.Next day, the owner of the boutique returned and found signs of ransacking and that cash of $290 and two plastic folders containing some documents had gone missing.  Case was reported.

Charge 4

11.The subject shop closed at 10 pm daily with both the front rolling shutter and rear door locked.  On 10 July 2020, Mr Chan wearing a cap and face mask entered the shop at about a quarter to 11 pm.  He ransacked the shop and prized open the drawer with a chopper picked up from the shop kitchen.  He left after 2 minutes.

12.Later, the owner of the shop confirmed that $550 had gone missing.  Case was reported.

Arrest

13.On 14 July 2020, in Tin Shui Wai, police stopped Mr Chan in the street outside his residence block because he resembled the suspect captured by CCTV relating to Charge 3.  Upon search, 5 skeleton keys and 2 keys were found in the cross-body bag carried by Mr Chan.  Mr Chan panicked and he was arrested. Under caution, Mr Chan admitted that he was having financial difficulties and he burgled the boutique subject of Charge 3 with the 5 skeleton keys.

14.On Mr Chan’s person, there was cash of $1,189.90.

15.House search unearthed clothing resembling the clothes worn by the suspect regarding Charge 3.  Under caution, Mr Chan admitted that he was wearing the white T-shirt and black cap found when he committed the offence subject of Charge 3.

16.During subsequent video-recorded interview(s), Mr Chan admitted the following:-

Regarding Charge 3

(a)  He tried the 5 skeleton keys on the lock of the boutique and one of them opened the lock so he entered the boutique and stole about $200 and some documents;

(b)  He had used up the money and thrown away the documents which he initially thought were money; the cash found on him on arrest was his own money;

(c)  The jeans found at his home was also worn by him at the time of the offence;

Regarding Charge 4

(d)  He saw the shop was not locked so he entered; he prized open the drawer with a chopper picked up from the shop kitchen but returned it afterwards; he stole about $500 which he had already spent;

(e)  The cap, white T-shirt, jeans, black sneakers and black cross-body bag seized by the police were what he was wearing and carrying at the time of the offence.

17.Mr Chan now admits he committed the burglaries subject of Charges 1 to 4.

18.The total value of the stolen property from all 4 charges came to about $46,370.

Criminal record

19.Mr Chan has 44 previous convictions 28 of which are Theft Ordinance offences and of those 23 are Burglaries.  Mr Chan can rightly be regarded as a recidivist.  He was last sentenced in October 2018 to a 31 months’ term for largely burglary offences.

Antecedents

20.Mr Chan is aged 57 (56 at the time of the offences), was born and received P6 level education in Mainland.  He was unemployed at the time of arrest.  Mr Chan is divorced and has a daughter aged 19.

Mitigation

21.Mr Andrew Leung of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Chan.

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

23.Mr Chan committed the burglaries subject of all charges with a skeleton key.  For 2 weeks in mid-2020, Mr Chan worked as a commercial driver delivering frozen meat earning around $10,000 before he was laid off due to Covid-19: see mitigation letter written by Mr Chan (with English translation).

24.Mr Chan is remorseful and pleaded guilty.  He committed the offences in order to pay off a debt related to the funeral expense of his late mother: see copy death certificate submitted.  He had spent all the stolen proceeds on the repayment of debt and living expenses.  However, he offers to perform restitution of $6,370 to his victims.

25.Mr Chan used skeleton key in all the burglaries which cause minimal damage to the locks.

26.Mr Leung submitted that there is a lack of many aggravating factors in the present case and asks for a lenient sentence on behalf of Mr Chan.

27.Mr Leung submitted three Court of Appeal sentencing authorities which are of limited value to my task here save and except that it was confirmed that the normal sentence for a burglary of non-domestic premises is 2 ½ years’ imprisonment.

28.Mr Leung has now in my presence arranged partial restitution to the victim of Charge 1 to the tune of $6,559.90 ($1,189.90 of which came from Mr Chan’s person on arrest); and partial restitution to the victim of Charge 2 to the tune of $1,000, all to be executed by the police on Mr Chan’s behalf.

Sentence

29.The normal sentence for a case of burglary of non-domestic premises is 2 ½ years’ imprisonment.

30.Absence of aggravating factor has never been a mitigating factor.

31.In fact, there are in this case the dual aggravating factors of a dreadful previous similar record and the commission of multiple offences.

32.I note that on the last occasion that Mr Chan was sentenced, in DCCC 289/2018, Deputy Judge Li Chi Ho raised the starting point of each of the burglary charges from 2 ½ years to 33 months ie by a margin of 3 months. Apparently, that has not done the job of stopping Mr Chan from committing further burglary offences.

33.I will try harder this time.

34.For Charge 1, I will increase the starting point from 30 months to 34 months.  For each of Charges 2 to 4, I will increase the starting point from 30 months to 36 months to reflect the dual aggravating factors aforesaid.

35.Mr Chan pleaded guilty in good time and so is entitled to a 1/3 discount.  In order to reflect the partial restitution on Charges 1 & 2, I will further take off 10 days from each of the sentences on Charges 1 & 2 after the 1/3 discount.  I can find no other mitigating factors of sufficient weight to justify any further reduction on all charges.

36.The 4 offences were committed on different dates and at different places and ought, subject only to totality, to attract consecutive sentences.

37.After consideration, I will impose the following sentences.

(Mr Chan, please stand)

38.For Charge 1, Mr Chan will go to prison for 22 and 1/3 months.

39.For Charge 2, Mr Chan will go to prison for 23 and 2/3 months.

40.For Charge 3, Mr Chan will go to prison for 24 months.

41.For Charge 4, Mr Chan will go to prison for 24 months.

42.After taking into account the principle of totality, I order that 4 and 2/3 months of the sentence on Charge 2, 4.5 months of the sentence on Charge 3, and 4.5 months of the sentence on Charge 4 to run consecutively to each other among themselves, and the result is to run consecutively to the sentence on Charge 1, making an aggregate sentence of 36 months’ imprisonment.