HKSAR v. Chan Ka Chung

DCCC 1447/2024

[2025] HKDC 1939

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1447 OF 2024

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REASONS FOR SENTENCE

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

2.I granted the prosecution's application to leave Charge 3 in the court file; not to be proceeded against the defendant without leave of court.

Summary of Facts

3.The facts of this case are straightforward.  The crimes took place on 10 May; 28 and 29 June 2024.  On the respective offence dates, the defendant stole from a total of 5 shops located in Sham Shui Po (Shops 1, 2, 4, 5 and 6).  In short, he has stolen a total of 3 mobile phones, 1 Octopus Card reader, some packaged food items and some bottled drinks.

4.CCTV footage captured the defendant stealing.  Except for Shop 5, which was on the 1^st Floor of a building, all the shops involved were at street level.  The defendant took away 3 unattended mobile phones from Shops 1, 2 and 4.  Charges 5 and 6 were common shoplifting.

5.The Police arrested the defendant on 29 June 2024 outside Shop 6.  Upon search, an Octopus Card reader (property of Shop 2) was found on him.  Under caution, he admitted having stolen grocery items from Shops 5 and 6.  At the time of his arrest, the defendant was wearing clothing similar to that worn by the culprit captured on CCTV at Shops 2, 4, 5 and 6.

Mitigation & Sentence

6.The defendant is 50 and has 59 conviction records, which included 58 "Theft" offences, 4 "Burglary" offences and a few dishonesty-related offences.  Defence counsel Mr. Ng informed me that the defendant is married, but no longer maintains contact with his wife, who resides in the mainland.  He has been a delivery worker, construction worker and waiter.  Prior to his arrest, the defendant was residing with his uncle. 

7.In mitigation, Mr. Ng submitted that the defendant was unemployed at the time of the present offences.  He was sentenced to 4 months' imprisonment on 6 March 2024 for shoplifting.  Yet he started re-offending on 10 May 2024.  Mr. Ng explained that the defendant was unable to find a job; financial hardship drove him back to his old ways.

8.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. Being unemployed or even suffering from dissocial personality disorder is no excuse for stealing.

Charges 1 and 2

9.The defendant is a repeated offender of "Theft" offences. His most recent conviction was a "Theft" offence[1], for which he was sentenced to 4 months' imprisonment on 6 March 2024.  In other words, he must have committed the present offences shortly after his release from prison. Being a recidivist and re-offending shortly after release are aggravating factors.

10.In the present case, the defendant acted alone; targeted at unattended mobile phones placed in shops; and committed 5 offences in less than 2 months, which is also an aggravating factor.  In my view, he might have picked the shops at random, but he certainly knew what to steal and where to steal it from.

11.According to HKSAR v Tse Kar Hang, Nigel[2], the starting point for stealing an unattended iPad or cell phone from a club house or a hotel reception desk is 18 months' imprisonment[3].  I would increase the starting point for each charge to 24 months, given the aggravating factors identified above.  With the timely guilty pleas, I sentence the defendant to 16 months' imprisonment each for Charges 1 and 2.

Charge 4

12.The normal starting point for non-domestic burglary is 2.5 years' imprisonment. The aggravating factors for Charges 1 and 2 likewise apply to this charge.  I accept that the modus operandi of Charge 4 is essentially the same as Charges 1 and 2.  It became a burglary offence because the defendant slipped into Shop 4 outside business hours while the roller shutter was half-open.

13.I am aware of the Court of Appeal's decisions in HKSAR v Cheung To Ming [2006] 2 HKLRD 259 and HKSAR v Sim Ka Wing CACC 450/2000.  I consider a starting point of 18 months' imprisonment appropriate for Charge 4, and will increase it to 24 months to reflect the relevant aggravating factors.  With the timely guilty plea, I sentence the defendant to 16 months' imprisonment for this charge.

Charges 5 and 6

14.The defendant is no stranger to shoplifting.  Of all his "Theft" convictions, 16 are recorded as shoplifting.  I consider a starting point of 6 months' imprisonment appropriate for each charge, and will increase it to 12 months to reflect the relevant aggravating factors.  With the timely guilty pleas, I sentence the defendant to 8 months' imprisonment for each charge.

Overall sentence

15.All 5 offences in the present case took place in less than 2 months.  The aggregate value of the 3 mobile phones and the Octopus Card reader is about $12,000. Bearing in mind the totality principle, I consider a global starting point of 45 months appropriate and just.  With the timely guilty pleas, the overall sentence becomes 30 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  Hence, I order the sentences for the 5 charges to run in the following manner:

(i) Charges 1 and 2 concurrent, but 9 months consecutive to Charge 4; and

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

16.The defendant first transgressed the law in 1988, when he was nearly 13.  He committed his first "Theft" offence in 1989.  He continued to break the law in 1990, 1994, 1995 and 1996.  He was first sentenced to imprisonment in May 2001, which was for a "Theft" offence.  Since 2005, the defendant has spent most of his time going in and out prison because of repeated dishonesty-related offences.  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 has just reached 50.  To live a law-abiding life with dignity or to continue being a criminal is a matter entirely for him.