HKSAR v. The Cheung Yung

DCCC 1110/2021

[2022] HKDC 843

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1110 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to one count of burglary, contrary to s 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.

Facts

2.Zoku restaurant (Zoku)  is situated on 2/F of HARI Hotel at 330 Lockhart Road, Wan Chai (the hotel).  Zoku was opened for business from 7:00 am to 10:00 pm. 

3.On 26 July 2021, Zoku’s staff discovered that 3 tablet computers (tablets)  and an iPad had gone missing. 

4.Upon reviewing the hotel’s CCTV, it was found that around 5:05 am on 26 July 2021, a man (later identified as the defendant)  was wandering outside the hotel.  Around 5:14 am, the defendant entered the hotel by forcefully opening the door to the hotel’s No 1 staircase.  After entering Zoku around 5:24 am, the defendant searched and stole 3 tablets and an iPad from the reception area.  He then left Zoku via the hotel’s No 2 staircase.  He left the hotel around 5:27 am and made his escape via the alley next to the hotel.

5.Police investigation revealed that the defendant had checked into The Bauhinia Hotel (Bauhinia)  in Tsim Sha Tsui on 28 July 2021.  On that day, Bauhinia’s staff found 2 black charging cables with plugs connected and one tablet case in Room 601.  At 8:15 pm on the same day, police arrested the defendant for “burglary” and seized an iPad and a Microsoft tablet in that room. The charging cables, plugs and the tablet case found earlier were seized by the police as well.

6.On the following day, in a cautioned video-recorded interview, the defendant told the police that around midnight on 26 July 2021, he was drinking with his friends in Lockhart Road.  Afterwards, feeling too drunk to go home, he intended to spend the night in a hotel.  Finding the hotel’s room rates too expensive after making enquiries at the hotel’s reception, he took the hotel’s lift to leave.  However, instead of going down, the lift took him up to Zoku, which was closed but not fenced off.  He left the hotel, had a smoke outside, and then decided to return to Zoku.  He entered the hotel via the back door and went up to Zoku.  Seeing no one there, he stole 2 Samsung and 1 Microsoft tablets and an iPad.  The following day, he sold the 2 Samsung tablets in Tsuen Wan for HK$1,700 and HK$1,800 respectively.  The money from their sale had been spent on daily expenses.

7.He confirmed that the iPad and the Microsoft tablet seized in Room 601 of Bauhinia were stolen from Zoku.

8.He voluntarily led the police to the shops where he had sold the 2 Samsung tablets for their recovery by the police.  He confirmed under caution that he had stolen these 2 tablets from Zoku.

9.He also confirmed that the charging cables, the plugs and the tablet case belonged to the hotel. 

Defendant’s background

10.The defendant is 38 years old.  He was born and educated locally up to form 3 level.  He has been a transportation and warehouse worker since 2000.  He lives with his mother in Tsing Yi.

11.He has 25 previous convictions, including 4 convictions for burglary and 6 convictions for theft.

Mitigation

12.After pointing out that the defendant pleaded guilty to the charge, admitted the offence under caution and voluntarily led the police to recover two of the stolen tablets, defence counsel Mr Cheung submitted that the defendant was just an opportunist for a one-off offence, taking the opportunity that he could enter the hotel through the unlocked staircase and stole from the restaurant which was not fenced off.

13.Mr Cheung further submitted that the defendant had acted alone without prior planning, that the value of the objects stolen was not substantial, and that the defendant was willing to compensate the shops which had bought the tablets from him.

14.Mr Cheung urged the court to consider departing from the normal starting point of 2 ½ years’ imprisonment for burglary of non-domestic premises to reflect the circumstances of the present offence.

15.In his mitigation letter, the defendant expressed his regrets for committing the present offence, and promised to not break the law again.

Sentencing considerations

16.While it is true that in the absence of aggravating or mitigating factors, the starting point for burglary of non-domestic premises is 2 ½ years’ imprisonment, the Court of Appeal in HKSAR v Cheng Wai Kai, CACC 338/2007, pointed out that this starting point can be adjusted upwards if there are aggravating circumstances. 

17.Regarding the submission that the court may consider adopting a lower starting point to reflect the present offence being an opportunistic burglary, I do not agree that the facts show that the defendant was an opportunistic burglar. 

18.On his way out of the hotel after making enquiries at its reception, noticing that Zoku was closed for business but its premises remained unfenced, the defendant must have realised that the restaurant represented an easy target to steal from.  But he did not seize that opportunity then and there. 

19.After leaving the hotel allegedly for a smoke, he decided to return to the restaurant and, in doing so, had to forcefully open the door to one of the hotel’s staircases in order to access the restaurant by that staircase.  In other words, he went back to Zoku on purpose, and that purpose was to steal from the restaurant.

20.The opportunity to walk in and steal from the restaurant had gone with his leaving the hotel for the first time.  After the smoke, he had to make an effort to regain entry to the hotel by forcing the staircase door open.  This shows his determination to steal from his target, rather than his acting opportunistically.

21.Given those circumstances, I do not think that a starting point which is lower than the normal one of 2 ½ years is appropriate.

22.On the other hand, there is room for an upward adjustment of that starting point.  Of the defendant’s 25 previous convictions, the 8 convictions prior to the very last one were either for burglary or for theft, with 4 convictions for each offence.  He was given sentences of 14 months, 20 months and 21 months for those burglary offences.

23.His repeated commission of these offences shows not only that he has become a recidivist, but also someone who was not deterred by the sentences he was given for those infractions.  These are factors which aggravate his present offence.

24.That the computers may not have been items of substantial monetary value does not mitigate the offence.  Their loss must have given rise to great inconvenience, among other things, to the restaurant’s operators and staff members who must have had to use the tablets in the course of their work. 

25.The defendant offered to pay full compensation to the two shops from which the police had recovered the 2 Samsung tablets, saying that his mother, who was present in the hearing, had brought along sufficient funds for that purpose.  However, his offer, not being backed up by any payment that had actually been made, is of little value to his mitigation.

26.The defendant’s timely plea is the only effective mitigation, for which he will receive a 1/3 discount in sentence. 

27.Given all the circumstances of the case and having considered what has been said in mitigation, I consider that a sentence after plea of 24 months’ imprisonment would act as a sufficient deterrent without violating the totality principle.  It goes without saying that this is a discounted sentence from a 36 months’ starting point before plea.

28.The defendant is sentenced to 24 months’ imprisonment for the present offence.

29.The court does not propose to make compensation orders arising out of the seizure of the 2 Samsung tablets for want of evidence regarding the circumstances under which the tablets were sold, the prices they were sold for, and the identity of the owners/operators of the two shops.