HKSAR v. Chan Chu Yan

DCCC 1058/2022

[2023] HKDC 849

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1058 OF 2022

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REASONS FOR SENTENCE

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1.Mr Chan 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 July 2022, in Hong Kong, having entered as a trespasser part of a building known as Shop 5A, Ground Floor, Yau Kwong Building, Nos 418-430 Hennessy Road, Causeway Bay, stole therein cash of $800 Hong Kong currency.

Facts admitted by Mr Chan

2.PW1 was owner of “Timbo Shredded Chicken” (“the Shop”)  situated at Causeway Bay.  The Shop opened from 8 am to 8 pm every day.  The Shop had one entrance installed with an electric roller shutter (“the Shutter”).  The keys to the Shutter were kept by PW1, PW1’s wife and PW2 who was the delivery man that delivered goods to the Shop.  There was a metal cabinet (“the Cabinet”)  where PW1 would keep cash; however, it was kept unlocked and placed near the entrance.

3.On 20 July 2022 at about 8:45 pm, PW1 left the Shop by locking the Shutter and with cash of around $1,800 kept inside the Cabinet.

4.On 21 July 2022 at about 5:40 am, PW2 arrived at the Shop and opened the Shutter for delivery.  As he later tried to close the Shutter, he found the Shutter became out of order and he could not close it.  He called PW1 to inform him.  Then he left with the Shutter open.

5.At about 5:41 am, Mr Chan was wandering outside the Shop and was looking inside it.  He then wore a face mask and entered the Shop through the opened Shutter.  One minute later, he left and fled.  A patrolling police constable saw what happened and gave chase and eventually intercepted Mr Chan.

6.Upon body search, cash of $813 was found from Mr Chan’s right trousers’ pocket.

7.Soon, PW1 returned and checked that cash of $800 was missing from the Cabinet.

8.CCTV of the Shop confirmed that Mr Chan went into the Shop wearing a face mask and took some cash from the Cabinet drawer.

9.Mr Chan was arrested at 5:55 am the same day.  Under caution, he admitted taking the money from the Cabinet as he had no money.

10.Subsequently on the same day, Mr Chan attended a VRI in the presence of his father.  Under caution, he admitted:

(a)  The Shutter was not closed and the Shop was unattended;

(b)  The Cabinet was not locked; and

(c)  He took $800 from the first drawer and put the money in his trousers’ pocket.

Criminal record

11.Mr Chan has one previous conviction of Theft in 2015.

Antecedents

12.Mr Chan is aged 40 now and was so at the time of the offence, educated to F4, unemployed.  He is single and lived alone.

Mitigation

13.Mr Antonio Tsui of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Chan.  The following is a summary of the mitigation submissions.

14.Mr Chan became unemployed since 2010.  He relied on CSSA to the tune of $5,220, which was barely enough for him to live on.

15.Mr Chan was fully cooperative with the police and admitted the offence.  He pleaded guilty to the offence saving the court’s time.

16.Mr Tsui relied on HKSAR v Sim Ka Wing, CACC 450/2000 (at para 5), and to HKSAR v Cheung To Ming, CACC 406/2005, to ask for a lower starting point for Mr Chan on the basis that he was an opportunistic burglar who walked into an unguarded shop with an open door; that there was no planning and he went in to steal whatever he could find.

17.Mr Tsui asked me to consider two non-binding sentencing cases namely HKSAR v So Ma Tai, DCCC 503/2020, and HKSAR v Ng Ka Ming, John Carmel, DCCC 629/2013.

18.Upon invitation by the court, Mr Tsui suggested a starting point of 21 months.

Sentence

19.I have considered all cases brought to my attention.

20.The usual sentence in a case of a burglary of non-domestic premises in the absence of aggravating or mitigating circumstance is one of 2 ½ years’ imprisonment.

21.I agree that here Mr Chan is someone in the position of an opportunistic burglar.  However, I cannot take as low a starting point as one suggested by Mr Tsui.  In view of the small amount stolen (which was fully recovered), I therefore lower the starting point to one of 24 months.

22.Mr Chan indicated his plea at the earliest opportunity and has made good the same.  He is entitled to the full 1/3 discount from the starting point of sentence.

23.There are no other mitigating circumstances justifying a further reduction in sentence.

24.The sentence is therefore 16 months’ imprisonment.