HKSAR v. Tsang Ka Long

DCCC 1061/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1061 OF 2011

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Reasons for Sentence

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1.The defendant pleaded guilty to one charge of burglary of a non-domestic premises, admitted to the summary of facts and was duly convicted.

Facts

2.Staff of Hokkaido Dairy Farm Milk Restaurant on Wellington Street, Central left the restaurant at around 10pm on 22^nd June 2011 after securing the cashier register and doors.

3.Upon their return at around 8am the following day, the supervisor of the restaurant found that all the banknotes totalling $3,600 inside the cashier register had gone, leaving behind just the coins. There was no sign of any ransacking of the premises nor prizing mark on the doors of the restaurant or the cash register.

4.The general manager of the restaurant reviewed the closed circuit television footage and saw a former employee, the defendant, going up and down the building at around 11pm on 22^nd June. The defendant had resigned on 8^th June 2011. Before his resignation, The defendant was once given the keys to the main door of the restaurant as well as the cash register.

5.The defendant was arrested on 11^th August but he remained silent under caution.

6.At a subsequent video recorded interview, the defendant admitted that he had made duplicates of the keys and had retained them even after his resignation. At around 11pm on 22^nd June, the defendant entered the restaurant and then opened the cash register with the duplicated keys, taking $3,000 cash and then left the building. The stolen money had all been spent within 1 week on entertainment.

Previous convictions

7.The defendant has 2 previous convictions, they are however not similar to the present offence and they are both dated 2006, when the defendant was 17 years old.

Mitigation

8.The defendant is 22 years old and single. Before the incident he was a full time waiter at the restaurant in question and worked there for 1 and a half year, earning $8,000 per month. About 2-3 years ago the defendant’s parents divorced. The defendant has a younger brother studying in tertiary education. The defendant is the main bread earner, contributing substantial sum of his earning to his family. His mother is of bad health and has to stay home.

9.According to Ms. Hung for the defendant, the duplicated keys were allowed to be made by the defendant’s then employer. The defendant had returned the original keys but had forgotten to return the duplicated ones which he continued to keep on his key chain, which was why the key was found on him at the time of his arrest.

10.On the night in question, the defendant wanted to see if there were any colleagues or friends when he entered the restaurant, but it was quite late and he could not find anybody. When he saw the cash register, he opened it and took the money out of momentary greed.

11.Letters from the defendant’s mother and his uncle were submitted. They show that the defendant had all along been a good sons and person.

12.Ms. Hung pointed out that the defendant is remorseful and pleaded guilty at the earliest opportunity. The defendant has no previous similar convictions, and urged the court to give him a chance to turn a new leaf.

13.According to Ms. Hung, the defendant is also willing to pay back the stolen money to the restaurant by way of restitution. As at the time of sentence, no such money had been paid.

14.Ms. Hung sought to rely on 4 cases in support of her claim that this is an opportunistic crime and that the usual starting point of 2 and half years’ imprisonment should be departed from. I deal with these cases below.

Sentencing tariffs and cases

15.It is well established that the appropriate starting point for burglary of a non-domestic premises without any mitigating or aggravating factors is that of 2 and a half years’ imprisonment.

16.I find the cases referred to by Ms. Hung for the defendant unhelpful to the defendant’s claim that it was an opportunistic crime.

17.In the case of HKSAR v Law Tin Yam, CACC 258/2010, the applicant was someone in his mid-40s living on social security. What happened was that he had entered into a neighbouring unlocked and unattended cubicle at where he lived and stole one packet of cigarettes. A starting point of 15 months’ imprisonment was substituted on appeal. In our present case, the restaurant and the cash register were both locked and the factual situations are wholly different.

18.In the case of HKSAR v Yeung Kwok Sang, CACC 4/2006, the applicant went to a premises that was under renovation to look for work. No one was there when he arrived. It so happened that the previous workers had left a rucksack with tools inside lying around. The applicant saw the opportunity and took it. The learned trial judge adopted the usual starting point for burglary of a non-domestic premises and then reduced the discounted sentence by a further 2 months in recognition of its opportunistic character. The sentence was upheld. Again, there was no indication of usage of a key to enter the premises. Although the applicant had an appalling record, he had been out of trouble for 16 years since he was last released from prison and the Court of Appeal specifically stated that the sentence of 18 months’ imprisonment was appropriate even without taking into account the previous convictions of the applicant.

19.In the case of HKSAR v 陳景炫, CACC 29/2010, the applicant was convicted on his own plea of 3 charges of burglary. The facts of that case bear some similarity to ours. There the applicant was former employee of the burgled restaurant. In a 3 month period, the applicant on 3 different occasions entered the restaurant with a key that was given to him by his former employer and which he had not returned. Upon entry, the applicant took food and drinks. He was caught red handed on the last occasion.

20.On appeal, the case of HKSAR v Cheung To Ming [2006] 2 HKLRD 259 was relied upon by the applicant. Cheung To Ming  is the case of the illegal immigrant who entered a premises which had already been burgled and found instant noodles, cooked them and ate them. Madam Justice Yuen found Cheung To Ming not applicable to the applicant’s case in that the applicant had deliberately used the key to open the door to enter the restaurant, and he did not do so because of hunger.

21.That should be the answer to Ms. Hung’s submission that our present case is one of opportunistic burglary. It is not. Furthermore, in陳景炫, the Court in fact upheld the starting point of 2 and a half years’ imprisonment for each of the 3 charges. It was only on the point of totality that the appeal was allowed and the sentence lowered.

22.In the last case of Secretary for Justice v Tsang Hong Yin, CAAR 5/2004 that Ms. Hung seeks to rely on, the respondent was sentenced to 6 months’ imprisonment after pleading guilty to the burglary of a non-domestic premises. The facts of the case were that the respondent, a former employee of the company that carried out maintenance work at the burgled premises had entered the premises with a key he had kept during his employment and took a pipe bending machine worth around $2,000.

23.The Court of Appeal first of all pointed out that it was not an opportunistic burglary.

24.In fact, counsel for the respondent did not seek to suggest that the starting point of 9 months’ imprisonment adopted by the trial judge could be supported. He accepted that there was no good reason for such a dramatic departure from the guidelines. The Court of Appeal agreed and found that they did not consider the situation in that case  possessed wholly exceptional circumstances which would have warranted a departure from the guidelines, that being a relatively standard burglary. The Court of Appeal did not however alter the sentence in the end, but it was only because of reasons wholly irrelevant for our present purpose.

25.Ms. Go for the prosecution referred me to the case of HKSAR v Sim Ka Wing, CACC 450/2000. There the applicant was a former employee of Delifrance the restaurant. While still in the employment, the applicant brought along rather elaborate gears and broke into the restaurant to steal. The Court found that although there was a breach of trust in that the applicant had used his knowledge of the restaurant to assist him in the burglary, it only warranted a modest increase in the starting point. The Court found that the degree of planning together with the breach of trust warranted a 6 months’ increase in the starting point.  

Restitution

26.I was told by Ms. Hung that the defendant in our present case is willing to repay the $3,600 that he had stolen. However, a mere offer to make restitution by an accused who has no money to back it up will not assist in his mitigation: HKSAR v Chan Kin CACC 126/2005.

27.In the case of Chan Kin, the Court of Appeal referred to 2 earlier cases and said that In cases where the offenders made the restitution voluntarily before their cases came to trial indicated true remorse on their part and they were entitled to a further reduction of sentence to reflect that.

28.In our present case, as pointed out above, nothing had been done so far by the defendant except a bare promise from Ms. Hung.

Sentence

29.I find that this is not a case of opportunistic burglary. I find that there is however insufficient evidence to show that the defendant had planned the burglary at the time of his duplication of the keys or his failure to give them back to the restaurant.

30.I find that there is insufficient evidence to show that the defendant had used his knowledge of the premises he gained when he was working there to justify an increase in the starting point on the ground of breach of trust as in HKSAR v Sim Ka Wing. I find however that the defendant had done nothing in relation to restitution as yet that would warrant a further discount in sentence.

31.I find there that there is nothing to allow me to depart from the guideline sentence and I will adopt a starting point of 30 months’ imprisonment, reducing it by one third in recognition of the defendant’s guilty plea and sentence him to 20 months’ imprisonment.