HKSAR v. Tsang Chun Wing

DCCC 1167/2023

[2024] HKDC 1180

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1167 OF 2023

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REASONS FOR SENTENCE

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1.The defendant is convicted of a charge of burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210 on his own plea and agreement to the Amended Summary of Facts.

Facts

2.A dispensary was found burgled in the morning of 1 October 2023.  The locked roller shutter was opened.  The defendant was caught on CCTV entering the dispensary and stole from the cash register.  Upon checking, 20 HK$100 banknotes were found missing.

3.The defendant was arrested on 4 October 2023 for burglary.  Under caution upon arrest, he admitted stealing the cash in the cash register because of his credit-card debt and that the dispensary roller shutter was opened with no staff inside.

Criminal Record

4.The defendant has a clear record.

Mitigation

5.The defendant is now aged 31.  He was educated up to Form 5.  He suffered from dyslexia and therefore he was unable to pursue further study.  Since his graduation, he has been working in restaurant.  At the time of the arrest, he earned about HK$20,000 per month.  He is single and lives with his family.

6.Defence counsel said the defendant committed the present offence out of momentary greed and that the commission of the offence was out of character.  It was said that his job at the restaurant included handling cash and his employer had never found any problem of the defendant handling cash.  It was said that the defendant is by nature an honest person.  It was also said that the defendant was in financial difficulty because he had gratuitously lent his friend a sum of HK$250,000 and he was unable to make the repayment.  He did not seek help from his family and friends.

7.It was said that the defendant had committed the present offence out of impulse.  It was also said that this was not a pre-planned operation and that he acted alone.  The stolen property was HK$2,000 cash.

8.Defence counsel said the defendant is now deeply remorseful.  In particular, he felt guilty towards his mother whose depression has deteriorated as a result of the present incident.  The defendant’s employer is willing to re-employ the defendant upon his release, and he considers the defendant a very good staff.  It was said that the church preacher has also offered to help the defendant in his rehabilitation and that the defendant’s father would provide the defendant training in mechanic repairs, to equip the defendant better for his future.  The family has already repaid the debt for the defendant, and the defendant has the full support of his family to start afresh.

9.It was also submitted that the defendant has already repaid the HK$2,000 to his instructing solicitor for onward payment to the dispensary victim.

10.Defence counsel referred this court to cases HKSAR v Cheung To Ming [2006] 2 HKLRD 259 and HKSAR v Tsang Chun Yin [2018] 1 HKLRD 1128.  He submitted that the present offence could be considered an opportunistic one, and he urged this court to adopt a lower sentencing starting point for the offence.  It has also been urged that the defendant should be entitled to sentencing discount by reason of his guilty plea.

11.Mitigation letters from the defendant, defendant’s mother, employer and the church preacher were also tendered to the court together with a medical certificate of the defendant’s mother.

Discussion

12.Before sentencing, this court has carefully considered all that was said on behalf of the defendant as well as the mitigation letters and medical certificate of the mother. 

13.As conceded by defence counsel, it is well-established that the appropriate sentencing starting point for burglary of non-domestic premises in the absence of aggravating or extremely strong mitigating factor is that of 2½ years’ imprisonment. (HKSAR v Sim Ka Wing, CACC 450/2000)

14.It is noted that the defendant here acted alone.  No tools were used in gaining entry to the premises.  The value of the properties stolen is relatively small. 

15.It has not been disputed that the roller shutter in question might not be properly locked at the time, although it had been pulled down, and this might result in people entering without any tools or breaking open the lock of the premises.  The court in the circumstances is willing to categorise this case as another opportunistic burglary.

16.The appropriate sentencing starting point in this case is 21 months’ imprisonment.  The defendant has pleaded guilty and he is entitled to full one-third sentencing discount, bringing the sentence to 14 months’ imprisonment. 

17.The defendant used to be a man of clear record and the reason why he was in financial difficulty was because he was helping a friend.  He does have good chances of starting afresh by reason of the unwavering support from his family and friends. 

18.He has also paid the HK$2,000 compensation to the victim.  This indicated his further remorse and determination to start afresh.  For this reason, the court is willing to further discount his sentence by 1-month imprisonment.

19.The defendant is therefore sentenced to 13 months’ imprisonment in this case.