HKSAR v. Chan Chung Po Ball

DCCC 952/2020

[2021] HKDC 607

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 952 OF 2020

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REASONS FOR SENTENCE

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1.Defendant is convicted of a charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210, on his own plea and agreement to Summary of Facts.

Facts

2.On 24 July 2020 at about 1816 hours, defendant, a former employee of the victim company, entered the office of the victim company as a trespasser using the key to the premises which he obtained when he was in the employment of the victim company.  Defendant left employment of the victim company in November 2018 and he had returned the only spare key to the victim company on his resignation. 

3.Defendant’s entry to the victim company office alerted the CCTV installed at the premises.  Subsequently, report to police was made and when police arrived an hour later, defendant was found still inside the victim company office. 

4.A set of keys were seized from the defendant, one of which could be used to open the main door of the premises.  Cash of $2,840 and an empty red packet were found inside his wallet.  Defendant was arrested and under caution, he admitted he was greedy to enter the premises to see if there was anything he could steal. 

5.Later, a record of interview was taken from him and he said he went to the premises during meal break to see if he could steal anything.  He said whilst he worked for the company, he had duplicated the key of the company and he only returned one key to the company upon resignation as he had forgotten to return the duplicated one.  He admitted having taken the money inside the 10 red packets in the victim office, totalling $400, as well as an empty red packet. 

6.CCTV caught defendant entering the company premises at 1816 hours during which he ransacked the premises until police came at 1916 hours. 

Mitigation

7.Defendant is now aged 31.  He was born in mainland China and immigrated to Hong Kong in 1991.  He is single.  He received tertiary education in Hong Kong and was awarded a bachelor’s degree. 

8.After his graduation, he worked as a project manager and at the time of the offence, he worked as an assistant hawker control officer of the Food and Environmental Hygiene Department with a monthly salary of around $21,500. 

9.It is said that defendant is a man of clear record before the incident.

10.Defence counsel submitted that whilst defendant worked at the victim company, he duplicated the company key in fear that he will lose the key. 

11.The former employer of defendant praised defendant for performing well in the company and defendant only left the employment in order to join the government.  It is said that when he left employment of the victim company, defendant forgot to return the duplicate key. 

12.It is said that shortly before the incident, defendant accidentally discovered that the duplicate key was still with him and he intended to return it to the former company.  On the day in question he was on duty from 2:30 pm to 11 pm and when he went for dinner break, he passed by the former company. It is said that he then remembered he had the duplicate key of the company with him and he decided to go up and see if there was anyone there as he intended to return the key. 

13.It is said that when the defendant arrived the company, no one was working inside.  For a while, he decided to put the key back to the company and intended to notify the old colleague to retrieve it the next day.  Therefore, he tried to open the door with the duplicate key and successfully entered the company. 

14.Whilst inside, he wandered around the company and saw a golden apple box on one of the desks.  Driven by curiosity, he opened the lid and saw the red packets there.  He was greedy at the time and took the packets with cash of $400 inside. 

15.It is said that the defendant committed the wrongful act due to instantaneous greed and recklessness, and that he now regrets what he has done and frankly admitted the present charge.  It is also submitted defendant is the breadwinner of the family and his mother is in need of his care. 

16.It is also said that the defendant is likely to be dismissed by the government by reason of the conviction in the present case. 

17.It is also said defendant is a diligent young man.  He took a part-time course and successfully enrolled in the City University of Hong Kong and obtained a bachelor’s degree with second upper honour. 

18.The defendant also did a lot of volunteer work and he has also been making regular contribution to church.  In fact, he totally contributed $36,000 for the period from year 2015 to March 2020.

19.Numerous mitigation letters were handed to this court, including that from the defendant, his former employer, defendant’s mother, former schoolmates, friend at the volunteer services, present supervisor, and church minister and members. 

20.His former employer said defendant was a motivated, diligent young man who is very dedicated to his work and co-operated well with other employees. Even after leaving the company, he would contact company employees and have dinner with them.  He is convinced that in fact the defendant is an honest reliable young man and that after the accident he originally only intended to give oral warning to the defendant and did not intend to press charges against the defendant.  However, the case was reported to police and the case was out of his hand.  He asked this court for leniency to the defendant in sentencing.

21.As for the other mitigation letters, they all boils down to ask this court to be lenient on the defendant.  They said that the defendant is a loving son who cares for the family, that he has a good heart and did charitable and volunteer work, that he is a man of positive good character and that the present case is one really out of character.  He is a polite and reliable person, helpful and sincere to others.  Donation receipts as well as appreciation certificate from volunteer services organisation were also lodged with this court. 

22.Defence counsel conceded that the starting point for sentencing of burglary for non-domestic premises is 30 months’ imprisonment.  The cases of HKSAR v Sim Ka Wing CACC 450/2000, HKSAR v Cheung To Ming [2006] 2 HKLRD 259 and  Secretary for Justice v Tsang Hon Yin, Anthony CAAR 5/2004, were also referred to this court. 

23.Defence counsel submitted that the defendant had been in custody after his arrest from 24 July 2020 and that he is now deeply remorseful as to what he has done.  He intended to turn a new leaf and be a better person upon his release.  It is also said the defendant undertakes not to reoffend and defence counsel asks this court to give him a lenient sentence. 

24.Defence counsel also submitted the defendant committed the present offence on an impulse, it was not a premeditated act.  The defendant did not bring any tools and weapons to cause any damage during the incident and the present case involves only a small amount of money.  It is also submitted that the present case does not involve a breach of trust as the defendant was no longer an employee of the former company at the time of the offence. 

25.The defence counsel also submitted the defendant used to be a man of good character and he seeks this court to, if possible, impose a suspended sentence on the defendant by reason of his guilty plea. 

Discussion

26.In passing sentence, this court has carefully considered all that was said on the defendant’s behalf, as well as all mitigation letters and documents in support of mitigation. 

27.It is well-established that the appropriate sentencing starting point for burglary of non-domestic premises in the absence of aggravating or extremely strong mitigation reasons is that of 2½ years’ imprisonment. The case is HKSAR v Sim Ka Wing.

28.The defendant used to be a man of good character. 

29.In the present case, the defendant acted alone.  There is absence of sophistication in the commission of the offence.  The value of the property stolen is relatively small.  No one is expected to be within the office at the time. 

30.It is noted however, that although no tools were used in breaking open the door and that the defendant did not bring any tool in the commission of the offence, the defendant did use a key which he obtained during his employment with the victim company to open the door. 

31.Whilst this court cannot exclude the possibility the defendant had forgotten to return this duplicate key to the victim company at the time of resignation, however this court has reservation that he went to the office to return the key, as the time of the visit was 6:16 pm which is outside usual office hours, and at the time when he actually arrived at the entrance of the victim company, he already noticed that there was no one inside the office. 

32.This court therefore does not accept that the defendant intended to return the key to the company at least from the moment when he opened the door with the company key knowing that there was no one inside the office.  Because if he should leave his company key in the company premises, then after his departure, the office would not be locked.  It is also noted by this court that it is not the defendant’s evidence that he did ring some colleagues to notify them of his arrival. 

33.Further, according to the proprietor of the company, the red packets were placed inside an apple-shaped box near the window within the office of the proprietor inside the premises and they are not visible to visitors unless you go inside the office of the proprietor and open up the box.  In fact, the defendant stayed within the premises for an hour before the police arrived. 

34.Nevertheless, this court as said earlier, accepts that the sum involved is small and considering the circumstances of the case, the guideline imposed by the Court of Appeal of burglary charges involving non-domestic premises, this court finds that the appropriate sentencing starting point here is 27 months’ imprisonment. 

35.Defendant has pleaded guilty and he is entitled to a full one-third sentencing discount, bringing the sentence to 18 months’ imprisonment. 

36.From the numerous and very persuasive mitigation letters, this court accepts that the commission of the offence by the defendant is one really out of character and that the defendant was really a person of positive good character and that it is unlikely that the defendant will reoffend.  Further, this court noted that it is highly probable that the defendant would lose his job and in the circumstances, this court is willing further to discount the sentence by 3 months to 15 months’ imprisonment. 

37.This court has also considered all the circumstances of the case and does not find it appropriate to suspend the sentence imposed. 

38.Defendant is therefore sentenced to 15 months’ imprisonment.