HKSAR v. Cheung Kai Wai

DCCC 148/2022

[2022] HKDC 1141

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 148 OF 2022

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.The defendant pleads guilty to a charge of burglary. This was a burglary of non-domestic premises. The burgled premises was a convenience store (“the shop”)  situated at Temple Street, Yau Ma Tei. Its entrance is secured by an electronic roller shutter.

2.At around 8:00 am on 2 December 2021, the shop assistant returned to the shop and discovered that cash of about $715 had gone missing from a drawer beneath the cash register. 

3.CCTV footage of the shop captured the defendant entering the shop at 5:33 am on 2 December 2021 after opening the roller shutter.  He was holding some keys in his hand.  He then pressed a button inside the shop to close the roller shutter and rummaged through the drawers at the cashier area for about two minutes.  At last, he pressed the same button to open the roller shutter and left. 

4.The shop manager recognised the thief as an ex-employee of the shop. The defendant was arrested for burglary on 7 December 2021.  Under caution, he confessed that he had committed the offence. 

5.In a subsequent video-recorded interview, he further admitted inter alia that as he had been unemployed for a while and had no money, so he went back to the shop to take money.  He opened the gate using a key previously given to him by the shop.  He had never been asked to return the key to the shop.  The cash of $583 found inside his wallet was the leftover money stolen from the shop. 

6.The defendant has no previous criminal record.  In his written and oral submission in mitigation, Mr Yuen, counsel for the defendant, tells the court that the defendant, aged 29 and being single, is residing with his parents.  He received education up to Form 3 level.  He is currently employed by a snack shop, earning a monthly income of $12,000.  He contributed $4,000 to his parents for household expenses. 

7.Mr Yuen submits that upon his arrest, the defendant was co-operative with the police and frankly admitted his wrongdoings under caution.  Counsel accepts that the Court of Appeal set the sentence of 30 months as the starting point for burglary of non-domestic premises for a first offender of full age. He submits that there is no aggravating factor in this case.  He urges the court to adopt a starting point of 30 months’ imprisonment, giving the defendant a one-third discount for his plea of guilty.

8.Mitigation letters written by the defendant and his parents have been handed up to the court.  In his letter, the defendant indicates remorse for his wrongdoing.  Two certificates of appreciation for the defendant’s voluntary community work are also produced to the court. 

9.In court, counsel for the prosecution and the defence agree that the shop having received the monies seized from the defendant only suffered a loss of $65. 

10.In passing sentence, I have carefully considered all the oral and written submissions of counsel for the defendant.  The usual 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 2 years and 6 months’ imprisonment.  I note that the defendant is an ex-employee of the shop, using a key given to him before to open the entrance gate of the shop.  The shop eventually only suffered a loss of $65. 

11.Having considered all the circumstances of this case, I am satisfied a starting point of 30 months’ imprisonment is appropriate.   I will give the defendant one-third discount for his guilty plea.  The defendant has a clear record.  He was involved in some voluntary community work.  In these circumstances, I exercise my discretion to reduce the sentence by 1 month. 

12.For the reasons given, the defendant is sentenced to 19 months’ imprisonment.