HKSAR v. Tsang Wai Yin

DCCC 326/2024

[2025] HKDC 515

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 326 OF 2024

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REASONS FOR SENTENCE

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The defendant faces 5 charges of "Theft" (Charges 1, 2, 3, 5 and 8)  and 5 charges of "Burglary" (Charges 4, 6, 7, 9 and 10). He pleaded guilty to Charges 1, 2, 4, 5, 6, 7, 9 and 10.

2.The prosecution applied to leave Charges 3 and 8 in the court file; not to be proceeded against the defendant without leave of court.  I granted the application.

Summary of Facts

3.The facts of this case are straightforward.  The crimes took place between 24 May and 13 July 2023.  On the respective offence dates, the defendant stole mobile phone(s)  or tablet computer(s)  from a total of 8 restaurants/food stalls located in mainly Tuen Mun, Yuen Long and Tin Shui Wai.  In short, he has stolen a total of 3 mobile phones (2 of which were iPhones)  and 6 tablet computers (3 of which were iPads).

4.The defendant's stealing acts were captured by CCTV footage of the respective premises.

5.When he was arrested for the "Burglary" offence in Charge 6, the defendant said under caution "Ah Sir, I did not have money so I stole the iPad from their shop."  When he was arrested for the "Theft" offence in Charge 7, the defendant said under caution "I recently ran out of money, so I stole the cell phone."

6.Upon search, 2 Samsung tablets were found in the defendant's sling bag.  He admitted under caution that he had stolen the 2 tablets from a sushi restaurant located at T Town Shopping Centre in Tin Shui Wan.  He claimed that the front door of the restaurant was closed, so he entered through its side door and stole 2 tablets.  The defendant was then arrested for the "Burglary" offence in Charge 10.  Under caution, he said "I ran out of money, please give me a chance, therefore I stole the 2 tablets."

7.In his video recorded interview, the defendant offered more details about Charge 10.

Mitigation & Sentence

8.The defendant is 45 and has 25 conviction records, which included 16 "Theft" offences and 4 "Robbery" offences.  Defence counsel Mr. Wong informed me that the defendant is married, but his wife resides in the mainland.  Since the pandemic, they seldom saw each other.  In mitigation, Mr. Wong acknowledged the fact that owing to the defendant's appalling criminal record, not much could be said, except his guilty pleas and the totality principle.

9.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious)  is no mitigating factor for committing a crime.

10.In the present case, the defendant acted alone; targeted at unattended mobile phones or tablet computers placed in restaurants/food stalls; and committed 8 offences within 7 weeks.  He might have picked the shops at random, but he certainly knew what to steal and had a well thought out plan to steal each time.  Furthermore, the defendant was last released from prison on 3 October 2022.  In less than 8 months, he started a new round of stealing.

Charges 1, 2 and 5

11.For the "Theft" offences, I consider them akin to "Pickpocketing", which warrant a starting point of 12 months' imprisonment each.  Since the defendant is a repeated offender of "Theft" offences, I would increase the starting point to 15 months.  With the timely guilty plea, I sentence him to 10 months' imprisonment for each charge.

Charges 4, 6, 7, 9 and 10

12.The normal starting point for non-domestic burglary is 2.5 years' imprisonment. The defendant has no previous conviction of "Burglary", but he is no doubt a recidivist of theft-related offences. In the present case, committing 5 burglaries within 1 week is also an aggravating factor[1]. Hence, I will increase the starting point to 36 months. With the timely guilty plea, I sentence the defendant to 24 months' imprisonment for each charge.

Overall sentence

13.All 8 offences in the present case took place within 7 weeks. The aggregate value of the stolen properties is about $35,000. Bearing in mind the totality principle, I consider a global starting point of 66 months appropriate and just. With the timely guilty pleas, the overall sentence becomes 44 months. Apart from this, I see no other mitigating factors which warrant any further reduction. Hence, I order the sentences for the 8 charges to run in the following manner :

(i)  Charges 1, 2 and 5 concurrent, but 7 months consecutive to Charge 4;

(ii)  Charges 6 and 7 concurrent, but 7 months consecutive to Charges 1, 2, 4 and 5

(iii)  Charges 9 and 10 concurrent, but 6 months consecutive to Charges 1, 2, 4, 5, 6 and 7.

14.The defendant first transgressed the law in 1992 at the age of 12. From 1997 to 2002, he continued to misbehave and the court has dealt with him in different ways including Training Centre, Community Service Order, fine, suspended sentence and Drug Addiction Treatment Centre. In October 2002, he was sentenced to 5 years and 4 months for "Robbery". He then managed stay out of trouble for a while. From July 2014 onwards, he spent most of his time in and out prison again. The court can only do so much in deterring a repeated offender by way of a heavy penalty. Whilst the sentence must carry a deterrent effect, it cannot go out of proportion. The defendant is only 45. To live a law-abiding life with dignity or to continue being a criminal is a matter entirely for him.