HKSAR v. Po Wai Tong

DCCC 529/2023

[2024] HKDC 308

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 529 OF 2023

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REASONS FOR SENTENCE

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1.The defendant has pleaded guilty to a single charge of burglary committed on 26 January 2023 at a ground floor premises in Tai Kok Tsui.

2.The premises are a restaurant, the New Tai Gor. On 25 January 2023, around 1900 hours, the restaurant was closed and the front gate was locked. Some $20,000 remained in the cashier machine inside the restaurant.

3.On the next day, 26 January 2023, premises was opened early in the morning around 5:30 am and the cash was found to be missing. The CCTV recording of the restaurant was reviewed. The defendant was seen to enter the premises through the back gate at around 2:30 am on the 26^th and seen to ransack the restaurant, take the money from the cashier machine and then left just after 3 o’clock in the morning on 26 January 2023.

4.On 7 February 2023, the defendant was arrested for burglary. Under caution, the defendant admitted entering the premises and stealing the money as he said he had no money. Defendant further elaborated at a video-recorded interview taken on 9 February 2023 where he indicated that he had in fact worked at the restaurant as a delivery man in the past and he had entered the premises by the back gate, as the CCTV showed, where he had known that the lock was broken. He had used up all the money.

5.The defendant’s background shows that he is a 44 year old man, he has a number of convictions, 21 previous convictions, 12 theft-related cases, none of them burglary. He has a family that support him, in fact I am told that two of his sisters are in court today to lend support. It can be said that he has been cooperative during the investigation. He also admitted during the course of the interview that he was a drug dependent and it can be seen from his conviction record that he has a number of convictions for drug-related offences including trafficking.

6.I will deal with the considerations for sentence. The restaurant is classed as a non-domestic premises. It is common and well-known that the starting point for sentence for a conviction after trial for a person of clear record for burglary of a non-domestic premises would be 30 months’ imprisonment. There would normally, in the event of an early plea of guilty being indicated, be a further sentencing discount of one-third from this figure. Defendant appears to be entitled to that discount.

7.The facts show that in this case the defendant can neither be said to be an opportunistic burglar as he was familiar with the premises nor a professional burglar because he has no record of previous convictions for burglary, so there are no particular mitigating or aggravating factors existing which would justify a departure from the normal starting point for sentence. I have indicated that is 30 months’ imprisonment. I have also indicated that I will reduce that by one-third to take into account the defendant’s plea of guilty in this matter. That reduction leads to a final sentence of 20 months’ imprisonment for this offence and that is the order of the court.