HKSAR v. Yuen Ka Ho

DCCC 436/2022

[2023] HKDC 178

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 436 OF 2022

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REASONS FOR SENTENCE

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1.Mr Yuen pleaded guilty before me to one charge of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210. Particulars are that he, on 21 December 2021, in Hong Kong, having entered as a trespasser part of a building known as “Tastea”, Shop No 6, Ground Floor, One Kai Tak, No 2 Muk Ning Street, Kowloon City, Kowloon, stole therein one cash box containing cash of $2,995 Hong Kong currency.

Facts admitted by Mr Yuen

2.The subject shop (“the Shop”)  was situated in One Kai Tak, Muk Ning Street, Kowloon City.

3.On 21 December 2021, at about 0127 hours, Mr Yuen, wearing a face mask and in a long sleeved top and pants squatted down in front of the glass door of the Shop.  He interfered with the door lock with an object before the glass on the door shattered.  He left.

4.At about 0132 hours, Mr Yuen came back and kicked on the shattered glass which sprayed all over the floor.  He then entered the Shop and searched for a while before leaving empty-handed.

5.At about 0136 hours, Mr Yuen again came back and entered the Shop and immediately walked to the cash box and took it away by first detaching a wire from it.  He left immediately.  He boarded a private car (“the Car”)  at Muk On Street.

6.Upon investigation, at about 2330 hours the same day, police arrested Mr Yuen after he had driven the Car to a carpark in Sau Mau Ping.  Under caution, Mr Yuen admitted committing burglary.

7.At the time of arrest, Mr Yuen possessed the key to the Car, one mobile phone, cash of $370 and a BOC bank card.

8.Upon search of the Car, the cash box taken from the Shop was recovered from the trunk.

9.During a subsequent VRI, Mr Yuen stated:-

(a)  He had previously visited the Shop so he knew only cash payment would be accepted there;

(b)  He committed the offence because he lacked money;

(c)  He tried to use a grinder to break the door lock but the door glass shattered out of his expectation;

(d)  He returned to the scene after one to two minutes and kicked on the shattered glass which sprayed all over the floor;

(e)  He entered the Shop and took away the cash box after detaching a wire from it; and

(f)  There was cash of $2,700 inside the cash box; he deposited cash of $1,300 into his BOC account; he kept around $1,100 or $1,200 at home; he had spent $200 on food.

Criminal record

10.Mr Yuen has a clear record.

Antecedents

11.Mr Yuen is aged 34 (33 at the time of the offence), educated to Higher Diploma level, was a film worker.  He lives with his parents in public housing in Sau Mau Ping.

Mitigation

12.Mr Samuel Fung of solicitor mitigated on behalf of Mr Yuen.  The following is a summary of the mitigation submissions.

13.Mr Yuen was adjudged bankrupt in July 2022, and is now a freelance photographer in the movie industry earning an average of $20,000 per month. His parents are both retired.

14.Mr Yuen pleaded guilty at the earliest opportunity.  He cooperated with the police.

15.The value involved was not particularly substantial and Mr Yuen has fully compensated the victim’s losses.

16.Mr Yuen experienced huge financial pressure at the material time.  Out of stupidity and out of his character, he committed the offence.

17.It was submitted that the electric grinder used in the burglary is not a heavy instrument.

18.It was submitted that the starting point for 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.

19.It was submitted that where full restitution is made before the hearing and there is a timely plea, a discount in the sentence is appropriate: HKSAR v Leung Shuk Man, CACC 230/2001, at para 14.

20.The court is urged to exercise leniency on Mr Yuen.

21.Mr Fung submitted on behalf of Mr Yuen 8 mitigation letters all in Chinese save one which was in English written respectively by Mr Yuen’s mother, father, elder sister, elder brother-in-law, business associate, another elder brother-in-law, girlfriend and Mr Yuen himself.  The contents are generally that Mr Yuen is a filial son, with no vice habits, a responsible member of the extended family, a trustworthy and loving person; that Mr Yuen committed the offence out of character and only because of financial pressure during the pandemic; that Mr Yuen’s work volume has returned to the level before the pandemic and there is no longer any motive for reoffending.  All the letter writers asked the court to pass a lenient sentence so Mr Yuen may turn over a new leaf earlier.

22.Mr Fung also submitted two other documents (copy)  to court[1], namely:-

(a)  A Higher Diploma in Cinematography and Lighting awarded by IVE to Mr Yuen in July 2010; and

(b)  A solicitor’s letter dated 19 January 2023 addressed to the police and enclosing with it a solicitor’s cheque marked payable to the victim in the amount of $11,025 (being the agreed amount of loss in full restitution).

23.In his oral submissions in supplement to the written mitigation, Mr Fung suddenly ventured to ask for a Community Service Order on the basis that Mr Yuen has satisfied all the 6 factors stipulated in HKSAR v Chow Chak Man & Another [1999] 3 HKLRD 37.  Mr Fung submitted Mr Yuen is an exceptionally good person but was rather stupid in committing the offence especially with the aid of his own car.

Sentence

24.This is a simple non-domestic premises burglary for which the normal sentence after trial would be 30 months’ imprisonment.

25.Because of the seriousness of the offence, I rule out all sentencing options other than immediate imprisonment.

26.I have seen two photographs of the electric grinder with which Mr Yuen had broken the glass door.  It was not exceptionally large or small.  The photographs have since been returned to the prosecution.  I do not think it added anything to the gravity of the offence: I certainly do not think that because of the use of it, it can be said that the offence was carefully planned or skillfully executed.

27.Although I do agree that Mr Yuen did act out of character by stupidly committing an offence (and a rather serious one at that)  for the first time at the rather mature age of 33, there is not sufficient material in the mitigation to show that he was of such a positive good character as to justify a lowering of the starting point.

28.I would simply adopt 30 months’ imprisonment as the starting point.

29.Mr Yuen pleaded guilty in good time earning for himself the full 1/3 discount in sentence.

30.Because of full restitution, I would further knock off 3 months after the 1/3 discount.  Other than that, I cannot discern any other grounds in Mr Yuen’s mitigation for reducing his sentence further.

(Mr Yuen, please stand)

31.Mr Yuen shall go to prison for 17 months.