HKSAR v. Cheung Ka Man

DCCC 935/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 935 OF 2013

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

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

Reasons for Sentence

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

1.Defendant, you have pleaded guilty to two charges before this court. The 1st charge is that of theft, contrary to section 9 of the Theft Ordinance. The 2nd charge is that of burglary, contrary to section 11(1)(b) and (4) of the same Ordinance. These offences were committed on consecutive days, the theft on 31 July 2013 and the burglary on 1 August.

2.In respect of the theft, you had stolen and prized open various lockers at the Lei Muk Shue Shopping Centre Car Park, Lei Muk Shue Estate, Kwai Chung, New Territories.  You were video-recorded by CCTV that at about 1.30 pm you had been leaving the location with several bags in your hand.  It was found that you had prized open about 12 lockers which were lockers belonging to the security guards at the estate and it was confirmed that cash of $800 was stolen from one particular staff’s locker.  That area where the lockers were located was in fact accessible to the public. 

3.The burglary was committed at a village hut at Tai Pak Tin Village, Kwai Chung.  This hut had been left vacant since some time in 2012. It was, however, secured by a front door and wire fences.  Also installed in the hut were CCTV cameras and a recording unit.  This hut had been used as a hairdressers by the owner, however, he had retired in 2012.  From the video recording made by the CCTV cameras, it was seen that you were captured at about 2.27 pm to have entered into the front door of those premises with a crowbar in your left hand.  It was found that you had stolen various equipment used for hairdressing which were two pairs of scissors, two pairs of razors, an electric drill, which is not used for hairdressing, but all to the value of approximately HK$3,000. 

4.On 13 August, you were intercepted by the police at Lei Muk Shue Estate.  The police officers cautioned you as you resembled the appearance of the male captured in the CCTV footage of the burglary of the hut.  Under caution, you immediately admitted that you had committed that offence.  You had sold the stolen property and spent the proceeds.  You also voluntarily admitted that you had committed the thefts at the lockers located at Lei Muk Shue Estate.  You had also spent the proceeds of the $800-odd that you had stolen.  You admitted that you knew that you were being recorded by CCTV.

5.Defendant, you are 35 years of age and have been brought to court on 29 previous occasions of which you have amassed 40 previous convictions.  Of those 40 convictions, 17 are for theft or attempted theft and eight of those are for burglary.  The remaining offences are mostly either for possession of dangerous drugs or equipment for injecting of dangerous drugs. 

6.Your solicitor, Mr Lam has made full mitigation on your behalf before me today.  I have taken into account all that he has had to say.  He has submitted that you are no longer a drug‑dependant.  You are single and previously worked as a kitchen, transportation and air-conditioning worker.  As can be seen from your record, you have spent a lot of time in prison.  Your last conviction was in November 2012 which you were sentenced for an offence of theft to 6 months’ imprisonment.  You were released in April of 2013.  Mr Lam explains that you committed this offence because you have few skills and as you have been in prison you have difficulty finding a job. 

7.This year, your brother passed away and you now understand that you should be the one who should look after your elderly parents.  Your strongest mitigating factor, defendant, is your plea of guilty. Since the age of 18, which was your first conviction, you have spent the majority of that time till now, that is the age of 35, behind bars.  This offence of theft was very audacious.  You knew that you were being video-recorded, this was an area open to the public and you brazenly prised open all 12 of the lockers and left with their personal belongings.  You have no respect for other people’s property and have shown to me that any previous sentences passed on you has had no deterrent effect at all.

8.As to the burglary, I reject the submission made that this was opportunistic one.  These premises were in a village in Kwai Chung.  As your solicitor said, you were walking around looking for vacant premises to burgle.  This was planned by you and you had a crowbar with you to break into the premises.  Once again, very fortunately, the owners of the property had a CCTV camera recording you clearly on this video. 

9.It goes without saying that your previous criminal record is appalling.  This is an aggravating factor in respect of sentence.  The aggravation is such that the usual starting point will be enhanced.  The burgled premises, I accept, were non‑domestic premises.  There are clear guidelines for burglary of non-domestic premises being one of 2½ years’ imprisonment or 30 months. 

10.Defendant, on charge 1, I would have taken a starting point of 15 months’ imprisonment had I convicted you after trial.  I enhance that sentence in view of your record to 18 months’ imprisonment. Giving you full credit for your plea of guilty, that term shall be reduced to one of 12 months’ imprisonment.

11.On charge 2, the usual starting point is one of 30 months’ imprisonment.  I enhance that starting point to 33 months in view of the aggravating factor of your criminal record.  Giving you full credit for your plea of guilty, that term shall be reduced to one of 22 months. 

12.I have taken into account the principle of totality.  These offences were separate and distinct from each other.  Taking into account all the matters concerned, I consider a total term of imprisonment of 26 months to be appropriate.  Therefore I order 4 months of charge 1 to run consecutive to that of charge 2 making your total term of imprisonment to be 2 years and 2 months.