HKSAR v. Ye Jianxing

DCCC 1197/2024

[2025] HKDC 1025

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1197 OF 2024

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REASONS FOR SENTENCE

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1.Mr Ye 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 28 April 2024, in Hong Kong, having entered as a trespasser part of a building known as Ground Floor, No 48 Jardine’s Crescent, Causeway Bay, stole therein one cash register and cash of $53,500 Hong Kong currency.

Facts admitted by Mr Ye

2.The subject premises was a restaurant situate at Ground Floor, No 48 Jardine’s Crescent, Causeway Bay.  The opening hours were 1 pm to 12 midnight.

3.On 28 April 2024, at about 12:35 am, PW1 being one of the owners of the restaurant locked the doors and left.

4.At about 12:55 am, Mr Ye, an ex-employee entered the restaurant after one failed attempt.  This was caught by the CCTV.

5.At about 12:55 pm, PW1 returned and found the front glass door was prized open.  He found the cash register containing cash of $3,500, and all the cash of $50,000 in the locker went missing.  He reported to the police.

6.One day later, police arrested Mr Ye for burglary.  Under caution, Mr Ye said he was in need of money due to gambling debts, so he stole from the place where he worked part-time before.

7.In a subsequent cautioned VRI, Mr Ye stated:

(a)  He was in need of money due to gambling debts; so he stole the cash register and cash from the restaurant;

(b)  He covered his body with a garbage bag and wore gloves;

(c)  He prized open the glass door with a screwdriver and a hammer;

(d)  He discarded the cash register and kept the cash at home; and

(e)  The cash of $48,545 at his home was the leftover after he had spent about $5,000 of the stolen cash.

8.House search of Mr Ye’s residence recovered the screwdriver used in the burglary, cash of $48,545, and the attire he wore in the act of burglary.

Criminal record

9.Mr Ye has a previous clear record.

Antecedents

10.Mr Ye is aged 29 (28 at the time of the offence), born in the Mainland and a F3 graduate there.  He used to work as a kitchen worker.  Mr Ye is single and was living in private housing in Hung Hom with his mother and sister.

Mitigation

11.Ms Wendy Mak of solicitor assigned by the Director of Legal Aid mitigated on behalf of Mr Ye.  The following is a summary of the mitigation submissions.

12.Mr Ye came to reside in Hong Kong with a one-way permit in or about 2018.  Immediately before arrest, Mr Ye had been working in a restaurant in Central as a kitchen worker for half a month earning $14,500 a month.  Before that, he had worked in the same role in different restaurants for a few years.

13.Before arrest, Mr Ye was living with his divorced mother (58, unemployed)  and younger sister (26, a salesperson).  Mother had suffered a stroke more than 10 years ago and requires care and assistance from Mr Ye and his younger sister.

14.Before arrest, Mr Ye and his sister shared in all household expenses including rental.

15.Mr Ye had a habit of soccer betting which led him into a total debt of more than $20,000.  This was the reason for his commission of the present offence.

16.Mr Ye has a clear record and he cooperated fully with the police and made admissions.  He pleaded guilty at the earliest opportunity.

17.Mr Ye committed the offence out of momentary stupidity and greed.  He acted alone without careful planning or use of heavy equipment.  Fortunately, a large part of the stolen sum was recovered and will be returned to the owner.

18.Since his remand in custody, Mr Ye has reflected and is deeply remorseful and ashamed.  He vows to start a new life and never to break the law again.  He prays for leniency.

19.By relying on R v Wong Man [1993] 1 HKC 80 and Attorney General v Lui Kam Chi [1993] 1 HKC 215, Ms Mak asked for a starting point of 30 months’ imprisonment for Mr Ye.  Further, Ms Mak submitted none of the aggravating factors listed in HKSAR v Cheng Wai Kai, CACC 338/2007, applies, so there should be no need for any upward adjustment of the starting point.

20.Ms Mak submitted on behalf of Mr Ye a mitigation letter written in Chinese by Mr Ye himself.  The contents generally are that he committed the offence because of family expenses and gambling debts; that he is regretful and apologizes to the victim; that he promises not to re-offend.  Mr Ye asked for a chance so he may take care of his family.

21.Ms Mak submitted two other cases namely HKSAR v Sim Ka Wing, CACC 450/2000, and HKSAR v Ho Kar Kei, DCCC 274/2021 [2021] HKDC 1557, both breach of trust cases, and asked the court to distinguish the present case from those cases.  In essence, Ms Mak submitted this case is not a breach of trust case.

Sentence

22.I agree this is not a breach of trust case despite the fact that Mr Ye was an ex-employee.  There was no evidence he had used any knowledge gained whilst working there in order to commit the burglary.

23.I accede to the submission of Ms Mak and adopt a starting point of 30 months’ imprisonment, which is the usual starting point after trial for burglary of non-domestic premises committed by a first offender of full age, without aggravating factors.

24.Mr Ye pleaded guilty in good time.  He shall be entitled to the customary 1/3 sentencing discount.  There are no other mitigating factors of weight to justify another sentencing reduction.

(Mr Ye, please stand)

25.The sentence is 20 months’ imprisonment.