HKSAR v. Yung Chik Nam

DCCC205/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 205 OF 2009

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Reasons for Sentence

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1. The defendant has been convicted on his plea of one charge of burglary committed on 21 August last year.  He was at the time employed by the victim company, the Metropolis Optical Company Limited, and in that capacity, he was entrusted with keys to access the premises.  However, in July last year, for a period of nearly a week, he did not report for work and when he did return, he was dismissed by the proprietor, where upon he returned the keys to the proprietor. 

2. On the 23 August last year, the proprietor found that two expensive spectacle frames were missing from the display rack and $3,232 missing from the till.  CCTV footage from the shop showed that the defendant and one other had entered the shop on the night of 21 August and tampered with the till and also the display counter. 

3. The defendant was arrested a few days later on 25 August, and admitted that he had entered the shop; he claimed that his intention was to mess up the shop.  He later admitted all the particulars of the offence, stating that he had dumped the spectacle frames in a litterbin of the shop.

4. The defendant is 37 years old and he has a clear record.  Mr Wong has submitted in mitigation that the reason the defendant committed this offence was not to enrich himself but because he harboured a grudge against the proprietor of the shop, since he felt that his hard work as an employee had not been appreciated.  Mr Wong has further submitted that this was an opportunistic offence, in the sense that the defendant was just passing by the shop on the night in question when he got the idea to break in and vandalise the place in order to show his grievance against the proprietor.

5. As I have made clear to Mr Wong, I do not accept that this was an opportunistic offence in the proper sense of that term.  It involved a degree of premeditation and planning to commit it.  The defendant apparently used a duplicate key that he had to open the lock of the glass door and he employed a locksmith, whom he persuaded that he was an employee who needed to get into the shop, to open the padlock for him.  He paid the locksmith $500 which he got from the till in the shop.

6. I accept that the defendant’s original motive may well have been primarily to show his grievance against the proprietor, whom he clearly felt had failed to appreciate his work, but it is equally clear that at some stage, that initial motivation was overtaken by an intention to steal both the frames - albeit that he dumped them in a bin, as he claims - and a fair amount of money from the till, over $3,000.

7. People have issues and grudges all the time, and they are of course obliged to sort these out in a lawful manner.  It was completely unacceptable and unlawful for the defendant to think of breaking into the shop and vandalising it to express his grievance.

8. I have noted the contents of the letters from his parents, his ex-girlfriend and his present girlfriend, all speaking highly of him, and also the defendant’s letter in which he states that he has reflected deeply on the matter and is very remorseful.

9. The defendant has indicated through his counsel that he is willing to pay compensation to the proprietor of the victim company, and it is entirely right that he should do so.  I order that the defendant pay compensation to PW1 in the sum of $13,667, which is made up as follows: the two spectacle frames are valued at $4,500 and $5,935 in a total of $10,435, which added to the stolen cash in the sum of $3,232, amounts to a total of $13,667.  I note that the defendant had a clear record before this incident, which is certainly a matter in his favour. 

10. The well-established starting point for burglary of non-domestic premises is 2 and a half years’ imprisonment after trial, and I can see no reason at all on the facts of this case, nor in everything that Mr Wong has submitted on the defendant’s behalf, to depart from that guideline.  Although he has not pleaded guilty at perhaps the very first opportunity, he has subsequently admitted everything, and for his plea of guilty and his co-operation, he is entitled to the full one-third discount normally afforded, which reduces the starting point to 20 months’ imprisonment. 

11. In all the circumstances including, importantly, his clear record, and also I accept that he is remorseful, I discount that by a further 2 months and impose a sentence of 18 months’ imprisonment.  I order the defendant to pay compensation to PW1 in a sum of $13,667.  The defendant has consented to his bail money being used to settle a portion of that sum and has undertaken that the balance will be paid within three days.