HKSAR v. Cheng Wai Shing

DCCC 49/2022

[2022] HKDC 1492

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 49 OF 2022

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REASONS FOR SENTENCE

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1.Mr Cheng pleaded guilty before me to Charges 1, 2 and 4 on an Amended Charge Sheet; and not guilty to the remaining charge thereon, namely Charge 3 which is a charge of Attempted theft.

2.Prosecution asked that Charge 3 be left on court file not to be proceeded with without the leave of this court or the Court of Appeal.  I so ordered.

3.Charge 1 is one of Theft, contrary to section 9 of the Theft Ordinance, Cap 210.  Particulars are that he, on 1 October 2021, at “SmarTone”, Shop No C, Ground Floor, Kam Shing Building, Nos 24A-26 Jordan Road, Yau Ma Tei, Kowloon, in Hong Kong, stole one iPhone, property belonging to SmarTone Mobile Communications Limited.

4.Charge 2 is also one of Theft, contrary to section 9 of the Theft Ordinance, Cap 210.  Particulars are that he, on 11 November 2021, at the same place, in Hong Kong, stole one iPhone, property belonging to SmarTone Mobile Communications Limited.

5.Charge 4 is one of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.  Particulars are that he, on 15 November 2021, in Hong Kong, having entered as a trespasser part of a building known as Shop No G81A, Ground Floor, Sincere Podium, No 83 Argyle Street, Mongkok, Kowloon, stole therein 13 iPhones.

FACTS ADMITTED BY MR CHENG

Charge 1

6.On 1 October 2021, shortly before 5 pm, Mr Cheng entered a Smartone Shop on Jordan Road and picked up an iPhone 13 Pro Max 128 GB (worth $9,399)  on the display counter.  He was also holding something reflective in his right hand. After a while, the mobile phone was detached from the display counter and was taken away by Mr Cheng who then left.  The security device of the phone was left behind with a cutter attached to it.

7.Case was reported.

Charge 2

8.On 11 November 2021, at 4:18 pm, Mr Cheng entered the same Smartone Shop.  He picked up another iPhone of the same model attached to the display wall with his left hand, while holding something reflective in his right hand. After a while, the mobile phone was detached from the display wall.  Mr Cheng took the phone away and left.

9.Case was reported.

Charge 4

10.PW3 was the owner of a mobile phone shop on Ground Floor of Sincere Podium.  The shopfront consisted of a glass cabinet which was used as a counter (the “Counter Cabinet”).  In order to enter or leave the shop, one has to pull open the Counter Cabinet to make a way.  Customers were not allowed to go inside the shop.

11.On 15 November 2021, at about 1 pm, a wholesale phone salesman PW4 visited the shop in order to sell 16 iPhones “Pro Max” to PW3.  Having received the iPhones, PW3 first paid $80,640 to PW4, and asked PW4 to return to the shop later to collect the outstanding payment.

12.At around 1:50 pm, PW4 returned to the shop to ask for payment.  PW3 said that he would personally go to get some cash, then left the shop.  PW4 waited outside the shop.  At about 2 pm, Mr Cheng came and asked PW4 where the person-in-charge was.  PW4 replied that PW3 had gone to get some money.  Mr Cheng then pulled open the Counter Cabinet and walked into the shop.  He took some mobile phones from the cabinet shelf and placed them into his grey backpack before leaving.  PW3 returned to the shop only to discover that 13 iPhones were missing from the cabinet shelf.

13.Case was reported.

Arrest and caution

14.All of the incidents were caught on CCTV.  As a result of investigation, on 15 November 2021, at 4:10 pm, police arrested and cautioned Mr Cheng in Kwai Chung Estate.

15.House search was conducted in Mr Cheng’s residence in Kwai Chung Estate during which the clothing worn by Mr Cheng during the three incidents were found and seized.

16.Cash of $2,153 was also seized from Mr Cheng.

17.None of the stolen iPhones were recovered.

CRIMINAL RECORD

18.Mr Cheng has 58 previous convictions 52 of which are similar.  The last 2 convictions were actually recorded after the commission of the present offences.  Mr Cheng has been almost continuously serving time in institutions since 1993.  It is no exaggeration to say that he is a seasoned inmate.

19.Upon enquiry, prosecution informed the court that the present offences were committed whilst Mr Cheng was on police bail for the offences subject of the last two recorded convictions.

ANTECEDENTS

20.Mr Cheng is aged 51 (50 at the time of the offences), educated to junior high school level, unemployed at the time of arrest.  He used to live with his girlfriend in Kwai Chung Estate.

MITIGATION

21.Mr James Wong of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Cheng.  The following is a summary of the mitigation submissions.

22.Mr Cheng pleaded guilty in a timely manner, showing remorse and saving the court’s time.

23.Under Charges 1 & 2, it was submitted that unlike theft of a mobile phone from an individual owner – in which case the mobile phone would invariably contain large amounts of data of importance to the owner, data that was both practical and sentimental, and its theft therefore might well put its owner to a high degree of distress and inconvenience – in the present case, no such aggravating factor existed in the circumstances: HKSAR v Liu Lin Feng, CACC 206/2011, at para 36, distinguished.

24.As for Charge 4, it was submitted the conventional starting point for a burglary of non-domestic premises is 2½ years’ imprisonment: R v Wong Man [1993] 1 HKC 80.

25.In HKSAR v Sim Ka Wing, CACC 450/2000, Keith JA (giving the judgment of the Court)  observed that, at p 5:-

“The conventional starting point of 2½ years’ imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting point. The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find. Likewise, the conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value.” (Emphasis supplied)

26.It was submitted that Mr Cheng was an opportunistic burglar who took advantage of the absence of the person-in-charge; that no tools or instruments were used to gain entry.  It was submitted that this is akin to “the sneak thief who walks into an open office to steal whatever he can find”.  It was submitted that the court may adopt a lower starting point in the circumstances.

27.Mr Cheng received education to secondary one and is single but has a live-in girlfriend.  Since July 2021, Mr Cheng has been unemployed and has been receiving CSSA of around $5,000 per month.  He visited his elderly mother regularly and assisted her in her daily matters.  He wishes the court to show leniency so he can fulfil filial duties as soon as practicable.

28.Mr Cheng’s girlfriend and two other friends are in court to give their support.

29.Whilst Mr Cheng had multiple criminal records involving dishonesty, he has no previous conviction for burglary.

30.Mr Wong asked the court to take into account the principle of totality when sentencing Mr Cheng.

31.When told the court is minded to make a compensation order in favour of PW3 out of the money seized from Mr Cheng, Mr Wong submitted that the $2,000 odd seized from Mr Cheng was mostly CSSA payment with the rest being his own savings; that the money was intended for use by the girlfriend who is unemployed and suffering from mental illness.

32.Upon enquiry, Mr Wong acknowledged that commission of an offence whilst on bail is an aggravating factor but submitted that the circumstance under police bail is less serious than one under court bail.

SENTENCE

33.Mr Cheng has a dreadful criminal record of similar convictions though admittedly he has no previous conviction for burglary.  He could be legitimately described as a career thief.

34.For Charge 1, I take an initial starting point of 12 months.  For the dual aggravating factors of his dreadful criminal record and his commission of the offence whilst on bail, I increase the starting point to 16½ months.

35.For Charge 2, for similar reasons, I adopt a starting point of 16½ months.

36.For Charge 4, it’s a technical burglary of non-domestic premises only because of the setting of the shop front.  Bearing in mind also it could be described as an opportunistic burglary, I take an initial starting point of 24 months’ imprisonment only.  For the same dual aggravating factors, I increase the starting point to 30 months’ imprisonment.

37.Mr Cheng pleaded guilty in good time.  He shall be entitled to the full 1/3 discount.  Other than that, I cannot discern any other ground from the mitigation to reduce sentence further.

38.The offences were committed separately on different dates and ought to be dealt with separately by way of consecutive sentences, subject only to totality.

39.I will consider totality when passing the final imprisonment sentence on Mr Cheng.

(Mr Cheng, please stand)

40.For Charge 1, the sentence is 11 months’ imprisonment.

41.For Charge 2, the sentence is 11 months’ imprisonment.

42.For Charge 4, the imprisonment sentence is a term of 20 months.

43.I order that 3 months of the sentence on Charge 1, and 4 months of the sentence on Charge 2, are to run consecutively between themselves, and to run consecutively to the imprisonment sentence on Charge 4, making an aggregate imprisonment sentence of 27 months.

44.In addition, also under Charge 4, I order compensation be paid by Mr Cheng to the victim of Charge 4 in the sum of $2,153, to be taken from the money seizure made by the police after Mr Cheng’s arrest.