HKSAR v. Cheng Ngan Kuen

DCCC 60/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 60 OF 2011

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Reasons for Sentence

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Charge and facts

1.The defendant pleads guilty to burglary of a food stall in Tsui Lam Market, Tseung Kwan O, New Territories. At about 7:15 p.m. on 5 October 2010, the stall owner finished business. His stall was fully occupied by boxes and trays. Thus the roller shutter could only be rolled down halfway without being secured.

2.On the following day he returned to the stall and found an induction cooker (valued at $900) and a cooking pot, both of which had been placed inside the stall, missing. After viewing the CCTV footage of his stall, he found that on the previous evening, a female had sneaked into this stall and stole both items as well as a bag of vegetables.

3.When he perchance spotted the female suspect (later known as the Defendant) with the same outward appearance and clothing as shown in the CCTV footage, he called the police. The police arrested the Defendant and yielded the two items from her TV cabinet in her home in Tsui Lam Estate.

Personal circumstances and mitigation put forward

4.The Defendant is now 50 years of age. She was divorced and bankrupt in 2009. She has no job and lives on public assistance. She lives with her boyfriend. I am told that she committed the offence as she was searching for discarded food to save money. She went beyond a legitimate search but instead climbed into the stall under the roller shutter. She has 6 previous convictions, 3 of which for theft and 2 for deception. She had been fined, given community service, and suspended for sentence but never jailed.

5.Her solicitor accepts that repeated dishonesty records can be an aggravating feature in sentencing. However, he urges me to consider that an inevitable jail term in terms of years is going to hit her very hard in itself. Further deterrence in the present case on the ground of her repeated dishonesty records may be unnecessary. I agree.

6.Her solicitor accepts that this is not an opportunistic burglary but submits that the stolen items had been recovered with only a bag of vegetables (with little value) lost. He suggests that the usual sentencing guidelines should be departed from. He has no authorities in support of this suggestion and I do not agree with it.

Sentencing guidelines

7.In R v Wong Man [1993] 1 HKC 80, the Court of Appeal stated that the proper starting point for non-domestic premises would be 2½ years’ imprisonment for a first offender of full age. In HKSAR v Sim Ka-wing Cr App 450/2000, the Court of Appeal stated that such starting point related to burglaries with no aggravating features.

Sentencing present Defendant

8.I take a starting point of 2½ years. I reduce it by one-third because of her guilty plea. There are no other mitigating factors. The sentence is 20 months.