HKSAR v. Cheng Chai See

DCCC680/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 680 OF 2011

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Reasons for Sentence

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1.Defendant has pleaded guilty to one charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210.

2.The facts of the case are very straightforward. The victimised premises is a Chinese restaurant in Harbour City, Tsim Sha Tsui.  The defendant was a waiter there and had been for many years. According to the company, he was not working on 22 and 23 February this year. Sometime after 11 o’clock on the evening of 22 February, the defendant entered the premises and stole from within.  The manager of the premises had left in an envelope that he sealed cash of just under HK$30,000.  He locked it in a drawer in the manager’s office to be collected the next day.  CCTV footage shows the defendant covering his head with a tablecloth inside the restaurant, walking towards the manager’s office at about 1.27 am.  He left the same way a few minutes later, not before he had retrieved a key to the office and the drawer, cut open the envelope and taken approximately one-third of the cash from within, $10,000. 

3.Although the defendant was hoping he would not be identified, he clearly did not take into account the CCTV footage of outside the restaurant in Harbour City would capture his movements.  He did not think to cover his head or hide his identity outside of the restaurant.  At first, when the defendant was questioned, he denied the offence.  However, in a video record of interview, he made a full confession. 

4.I have heard full mitigation.  Defendant is 36 years old and has a clear record.  His best mitigation is his plea of guilty today.  He is a father of a 10-year-old daughter and supports his mother.  He is the breadwinner of the family.  I have been told in mitigation that the defendant got into financial trouble through credit card and loan debts.  When threatened with a home visit by a creditor and possible nuisance to his family, the defendant committed this offence.  This is not an impulsive action by the defendant. He planned to go into the restaurant in the dead of night.  He knew because he worked there that there would be money in a drawer.

5.Counsel has mitigated to the best of her ability and stressed to the court that the defendant pleaded guilty, has a clear record and acted out of character.  Defendant has repaid $10,000 cash to his previous employer.  I have been told his employer has accepted this amount of money and forgiven him.  Colleagues have written to the court to support the defendant, asking for leniency.  Since the defendant’s arrest, he has been hospitalised once due to great stress and anxiety, but this is not entirely surprising with a case this serious pending action. 

6.It has been acknowledged by defence counsel that in a burglary situation of a non-domestic premise, a 2-and-a-half-year term of imprisonment is an appropriate starting point.  This starting point is appropriate where there are no aggravating or mitigating factors.  Despite the defendant being an employee of the premises, I would not consider this an aggravating factor to enhance a sentence.  Nor is there any great mitigation that will allow for a substantially less starting point.

7.Miss Wong has asked the court to consider a community service order.  However, with an offence of this nature, it is in my opinion an inappropriate sentence.  What I will give the defendant credit for is obviously his previous clear record.  I have been told the defendant acted out of character due to stress and this to an extent is supported by his colleagues writing to the court to support him.  I am prepared to accept that he acted desperately, and I will take into account that there has been full restitution.  The defendant has repaid the $10,000.  

8.Defendant, please stand up.  I have taken all of those factors into consideration and I will reduce the starting point from 2 and a half years by 6 months to 2 years’ imprisonment.  You are entitled to a discount of one-third for your plea today.  That is a discount of 8 months. You will be sentenced for this offence to 1 year and 4 months’ imprisonment.