HKSAR v. Ng Ming Kwan

DCCC647/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 647 OF 2011

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.The defendant has pleaded guilty to two counts of burglary, contrary to section 11(1)(b) & (4) of the Theft Ordinance, Cap.210.

2.The defendant was an employee of Yeh Lam Kwok Restaurant. In 2008, he started in their restaurant at the Laguna Plaza, Kwun Tong.  Later, in November 2010, he transferred to the Kai Tin Shopping Centre branch when he was promoted.  The defendant had keys to both premises.  

3.On 27 December last year, he visited colleagues at the Laguna Plaza branch.  Towards the end of the evening, the person in charge put the sales revenue totalling $76,343 from the restaurant’s takings and placed them into the safe.  Sometime later at about 11.20 pm, the person in charge, the defendant and other colleagues left and locked the restaurant.  The defendant came back alone a few minutes later.  He is seen on CCTV entering the premises and leaving using a key.  The money was discovered missing the next morning. 

4.The defendant must have then, having left the Laguna Plaza branch, gone to the Kai Tin Shopping centre branch.  There was $164,000 cash in a safe in that restaurant.  The defendant admits entering the branch and stealing this amount of money from the safe using a key.  The defendant then left Hong Kong via the Lok Ma Chau border at 2.51 am on 28 December within hours of having stolen this amount of money from the two restaurants.  The loss amounted to approximately HK$240,000.

5.The defendant surrendered himself to the police several months later on 25 April and made a full confession to the police.  There has been no restitution of this loss.  He told the police and his reasons for committing this offence have been repeated today.  He had debts to settle and grandmother’s medical expenses to pay. 

6.The defendant is a 24 year old single man who has no criminal record.  His best mitigation today is the fact he has pleaded guilty.  The defendant has written a letter to the court in mitigation asking for leniency and expressing remorse. 

7.For offences of this nature, a non-domestic premises burglary, there is a customary sentence.  A 2½ years starting point is appropriate in the absence of any aggravating or mitigating factors. The authority of HKSAR v Cheng Chi Shing, CACC236/2000 reiterates this guideline tariff. 

8.I take into account all mitigation put forward. I take into account that the amount of money here is not insignificant and there has been no restitution.  There is two separate premises burgled but within hours of each other.  The defendant could only enter the premises easily because of his status as an employee and being in possession of the keys.  A breach of trust element as there is here can be described as an aggravating factor.  In turn, a clear record can also be a mitigating factor. 

9.I will take a customary starting point of 2 years and 6 months for each charge. 

10.Defendant, please stand up.  You are entitled to a discount of 10 months for your plea of guilty.  For Charge 1, you are sentenced to 1 year and 8 months’ imprisonment.  For Charge 2, you are also sentenced to 1 year and 8 months’ imprisonment.  I will order that 4 months of the sentence of 1 year and 8 months for Charge 2 will be consecutive to Charge 1 and the balance concurrent.  That would mean a sentence of 2 years’ imprisonment.