HKSAR v. Tam Wing Chuen

DCCC 433/2021

[2021] HKDC 1567

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 433 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to 2 counts of “burglary”, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap. 210.

Facts

2.“Unique Cube” is a consignment store located at Shop No. 128, 1/F, Kings Wing Plaza 1, 3 On Kwan Street, Shatin, New Territories (“the Store”).

3.On 12 October 2020, Ms. Leung Shong Ni, staff of the Store, put cash in the sum of HK$3,400 in the cash register and cash in the sum of HK$24,000 in a locked drawer.  She then locked the roller shutter of the Store and left.

4.On 13 October 2020, the Store was closed. 

5.On 14 October 2020, Ms. Leung returned to the Store and found that all the cash originally placed in the Store’s cash register and the locked drawer went missing.  Case was reported.

6.On 17 October 2020, the defendant contacted Mr. Hui Kwok Sai, owner of the Store, and offered to repay the Store for burgling the Store.  A controlled meeting was arranged by the police between Mr. Hui and the defendant.

7.At about 10:20 p.m. on the same day, the defendant brought cash in the sum of HK$7,000 to the Store for the purpose of settlement.  The defendant told Mr. Hui that he burgled the Store by using a key provided by the Store’s ex-employee Ms. Wong Wing Yan.  The defendant was arrested.

8.Under caution upon arrest, the defendant admitted that he burgled the Store twice and had stolen a total of HK$27,400 from the Store.  The defendant further said that Ms. Wong instructed him to commit the burglaries and he had given HK$20,000 to Ms. Wong.  He planned to return the remaining HK$7,000 to the Store.  He was remorseful and wished to be given a chance. 

9.In a subsequent video-recorded interview, the defendant admitted under caution that:

(a)  On 12 October 2020, Ms. Wong suggested the defendant to burgle the Store. Ms. Wong provided him with a pair of black sneakers and a key to the Store. The defendant and Ms. Wong then went to Kings Wing Plaza 1 together. Ms. Wong suggested she would act as a lookout for the defendant;

(b)  The defendant and Ms. Wong entered the shopping mall. Then, he got changed and wore a black jacket;

(c)  Afterwards, the defendant entered the Store by opening the roller shutter with the key given by Ms. Wong. He stole cash from the cash register of the Store (“1^st Burglary”). Then he took off his black jacket in a toilet and returned to Ms. Wong’s abode. He passed all the stolen cash to Ms. Wong. Thereafter, Ms. Wong told him that there was a hidden compartment in the Store’s cash register. Ms. Wong suggested the defendant to visit the Store again to take the cash from the hidden compartment;

(d)  The defendant went to the Store again. After getting changed in the toilet of the shopping mall, he went to the Store and opened the roller shutter with the key. He stole cash from the hidden compartment of a cash register. He then secured the roller shutter of the Store, got changed and returned to Ms. Wong’s abode. He gave all the stolen cash to Ms. Wong (“2^nd Burglary”); and

(e)  He was the burglar captured by the relevant CCTVs.

10.The total amount of cash stolen by the defendant together with Ms. Wong in the 1^st and 2^nd Burglaries was HK$27,400.

Mitigation

11.The defendant is aged 31, single and lived with his brother prior to the arrest.  Before arrest, he worked as a waiter earning about HK$15,000 to HK$20,000 per month.  He has 2 previous conviction records, which are regarded as spent convictions. 

12.It was submitted that at the time of the offences, the defendant was dating Ms. Wong and committed the offences to please Ms. Wong.  It was further submitted that without the defendant’s approach to Mr. Hui, the defendant’s identity would not be revealed. 

Sentence

13.The Court of Appeal has laid down sentencing guidelines for burglary of non-domestic premises.  According to the guidelines, the starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 30 months’ imprisonment.

14.The defendant has 2 previous conviction records of theft, which are regarded as spent convictions.  Therefore, in sentencing, I will not consider his previous conviction records. 

15.For the two offences in question, they were committed jointly by the defendant and Ms. Wong.  This is regarded as an aggravating feature (see HKSAR v Cheng Wai Kai, CACC 338 & 339/2007, para 15).  I consider the starting point for each charge should be enhanced by 3 months for this aggravating feature.  Therefore, the appropriate starting point for each charge is 33 months’ imprisonment.  Since the defendant pleaded guilty to the 2 charges, he is entitled to the usual 1/3 discount on his guilty plea.  Therefore, the sentence for each charge is reduced to 22 months’ imprisonment. 

16.Regarding restitution, it is well settled that this can amount to mitigation, particularly when coupled with a plea of guilty (see HKSAR v Leung Shuk Man [2002] 3 HKC 424 and HKSAR v Cheung Suet Ting [2010] 6 HKC 249).  As the defendant has made partial restitution in the sum of HK$7,000 to Mr. Hui, he is entitled to a reduction of 1 month from his sentence for each of the two charges. 

17.Concerning the defendant’s voluntary confession to the police, I accept that the police may have difficulties in discovering the defendant to be one of the culprits of the two offences if the defendant did not approach Mr. Hui and later admit the offences at the very first opportunity.  Coupled with his guilty plea, this shows genuine remorse.  As to whether the defendant should be given a further discount on this, this is solely within the discretion of the sentencing judge (see HKSAR v Ngo Van Nam, CACC 418/2014 at paras 38-41).  In the circumstances of this case, I am prepared to grant a further reduction of 2 months for each of the 2 charges for the defendant’s voluntary confession. 

18.In light of the above mitigating factors, the sentence for each charge is reduced to 19 months’ imprisonment.

19.The two burglaries committed by the defendant are entirely separate and distinct offences.  In theory, their sentences should run consecutively.  Nevertheless, the second offence was committed only a few hours after the first offence at the same premises.  Having taken into consideration the totality principle, I am satisfied that a total sentence of 19 months is sufficient to reflect the criminality of the defendant’s conduct.  I therefore order the sentences of the two charges to run concurrently, making a total sentence of 19 months’ imprisonment.  I hereby sentence the defendant to a total sentence of 19 months’ imprisonment.