HKSAR v. Choi Wai Man

DCCC 661/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 661 OF 2014

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Reasons for Sentence

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Charges

1.D1 pleads guilty to the following charges which took place at the CUHK premises:

(1) Theft, committed on 4 April 2014 (1^st Charge);

(2) Burglaries committed on 7 April 2014 (2^nd Charge), 9 April 2014 (3^rd Charge), 11 April 2014 (4^th Charge), 19 April 2014 (5^th Charge), and 28 April 2014 (6^th Charge) respectively.

Crux of the case

2.On 4 April 2014, PW1, a student of CUHK, had his unattended belongings, including his student card, stolen.  PW2, who was with PW1, similarly had his unattended belongings stolen.  This related to the 1^st Charge, ie theft. Afterwards, D1 used PW1’s student card to enter the libraries in CUHK and steal the computers as particularized in the 2^nd to the 5^th Charges.  He also entered the premises of CUHK to steal a computer under the 6^th Charge.  In the course of his making off with the computer particularized in the 6^th Charge on 28 April 2014, the police caught him in the precinct of CUHK in possession of PW1’s student card and the computer.  In the subsequent cautioned video-recorded interviews, he admitted the offences.  

1^st Charge: Theft

3.PW1 and PW2 were students of CUHK.  In the evening on 4 April 2014, they went for drama practice and left their bags unattended outside Tsang Shiu Tim Building, United College, CUHK.  After practice, PW1 found his mobile phone and his wallet missing.  The wallet contained his Hong Kong Identity Card, Home Visit Permit, Octopus Card with $50 cash value, Hang Seng Bank Card and cash $510.  PW2 lost her Fujisu Notebook Computer and an iPod. 

2^nd Charge: Burglary

4.In the afternoon on 7 April 2014, PW3 left his IBM Notebook Computer (valued at $5,488) and PW4 left her Macbook (valued at $7,500) unattended in the Main Library, CUHK.  Later they returned only to find them missing.

3^rd Charge: Burglary

5.In the evening on 9 April 2014, PW5 left his company’s Lenovo Notebook Computer (valued at $15,000) unattended in the Elisabeth Luce Moore Library, CUHK.  Later he returned only to find it missing. 

4^th Charge: Burglary

6.In the evening on 11 April 2014, PW6 left her Macbook Pro (valued at $10,600) unattended in the Ch’ien Mu Library, New Asia College, CUHK.  Later she returned only to find it missing. 

5^th Charge: Burglary

7.In the evening on 19 April 2014, PW7 left his Lenovo Notebook Computer (valued at $5,000) unattended in Elisabeth Luce Moore Library, CUHK.  Later he returned only to find it missing. 

6^th Charge: Burglary

8.In the evening on 28 April 2014, PW8 left his Macbook unattended in the Benjamin Franklin Centre, CUHK.  Later he returned only to find it missing. 

Police arresting D1 and their investigation

9.In the course of his making off with PW8’s computer, the police arrested him.  In the subsequent video-recorded interviews, he admitted the offences.  He also said that he had used the wig to change his hair style and that he had already spent all the proceeds of $10,900, which was obtained from selling the stolen property in Apliu Street.  His Octopus Card record revealed that at the material times of each of the offences, he had exited University Station sometime before the offence and entered University Station sometime after the offence.      

Mitigation

10.He is now 37 years of age, of F.1 education level.   He lives with his girlfriend and their son, aged 3.  She is a housewife.  His left eye has suffered a loss of vision since February 2014.  He was no longer able to work as a transportation worker since then.  He had 2 burglary records, one in 1995 and the other in 2000.  He had a record for robbery and one for theft in 1991.  His last record was for theft in 2012.  Bad as they were, I do not regard him a recidivist burglar at the time of the present offences. 

11.His solicitor asks me to consider adopting an overall starting point to the order of 45 months before taking into account the mitigating factors. 

Sentencing guidelines for non-domestic premises

12.In R v Wong Man [1993] 1 HKC 80, the Court of Appeal said that the proper starting point for non-domestic premises would be 2 ½ years’ imprisonment for a first offender of full age.

13.In HKSAR v Sim Ka-wing, CACC450/2000, at para 9, Keith JA said this:

The conventional starting-point of 2 1/2 years' imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point. The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find. Likewise, the conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value.

Sentencing this defendant

14.I take a starting point of 12 months for the 1^st Charge and 2 ½ years for each of the 2^nd to the 6^th Charges.  His only mitigating factor is his plea of guilty, which merits a one-third discount for each charge.  The sentences shall thus be as follows:

(1) 1^st Charge, 8 months;

(2) 2^nd to 6^th Charges, 20 months each.

15.I make the following order based on totality:

(1) 2^nd Charge, 20 months;

(2) 1^st Charge, 3^rd to 6^th Charge, 2 months of each to be consecutive to 2^nd Charge.

16.The overall sentence is 30 months.