HKSAR v. Tsang Tak Wa

DCCC 53/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 53 OF 2015

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to 3 charges of "Theft". He, on 3 occasions, stole food items from the same stall in a public market.

Summary of Facts

2.Madam LAW (PW1) is the owner of "Brilliant Frozen Food Market" ("the Shop") situated at Ground Floor, Chai Wan Municipal Services Building ("the Market Building"). The Shop sells frozen meat.  Its address is particularized in all 3 Charges.

Charge 1

3.About 7:15 pm on 19 October 2014, PW1 left the Shop after closing.  She returned to the Shop about 6:30 am the following day.  She found the cloth covering the goods having been flipped open.  The following items were missing from the Shop:  5 bottles of curry sauce; 6 packets of crab fillet; 6 packets of pickled cabbage; 10 packets of cheese; 8 packets of cheese sausage; and 12 packets of seaweed.  The total value of these items was $950.  PW1 reported the case to the Police.

Charge 2

4.About 7:20 pm on 17 November 2014, PW1 left the Shop after closing.  She returned to the Shop about 7:00 am the following day.  She discovered some frozen sausages, meats and canned food missing (total value approximately $2,000).  She reported the case to the Police.

Charge 3

5.On 28 November 2014, PW1 counted and packed the goods at the Shop before closing.  She left about 7:00 pm.

6.About 2:20 am on 29 November, a security guard of the Market Building (PW2 Mr. WONG), through the CCTV monitor, saw a male climbing away from the Shop and leaving the Market Building.  PW2 then contacted PW1 and reported the case to the Police.

7.PW1 found missing from the Shop 10 packets of cheese sausage and18 packets of pork ham (total value $840).

CCTV Footage

8.CCTV footage of the Shop reveals that a male entered the Shop and took away some goods respectively at 9:29 pm on 19 October 2014, 2:48 am on 18 November 2014 and 2:21 am on 29 November 2014.

9.CCTV footage of the Market Building reveals:  (i) a male using the cargo lift at 2:46 am on 18 November 2014 and leaving the Shop with a few plastic bags at 2:52 am (Charge 2); and (ii) a male entering the Shop at 2:23 am on 29 November 2014 and leaving the Ground Floor of the Market Building using the cargo lift (Charge 3).

Arrest and Admissions

10.About 3:25 pm on 10 December 2014, whilst on patrol at Wo Hing House, Hing Wah Estate, Chai Wan, PC 161 (PW3) noticed the defendant acting furtively on the 9^th Floor of Wo Hing House.  He revealed his police identity, but the defendant fled towards the staircase. PW3 gave chase and intercepted the defendant at the staircase.

11.PW3 found the defendant matching the descriptions of the culprit stealing from the Shop.  Upon enquiry, the defendant admitted that he had stolen from the Shop.

12.Under caution, the defendant admitted, inter alia, that he had stolen from the Shop twice in mid-November and once in late October.  He claimed that he stole frozen meats and sausages for his own consumption because he was unemployed.  He had consumed all the stolen food items.

Mitigation & Sentence

13.The defendant is 35 and single.  He has 10 conviction records, which include 7 "Theft" offences and 1 "Robbery" offence.  Defence counsel Ms. WONG informed me that prior to his arrest, the defendant worked as a driver in a transportation company on a casual basis earning an unstable income of about $2,000 per month.  He also received social welfare in the sum of about $2,000 per month.

14.Ms. WONG also informed me that the defendant's parents had a divorce when he was 12.  The defendant was raised by his mother (aged 55) and he resides with her.  His mother suffers from neck pain and has heart problems; the defendant needs to care for her.  The defendant also has a girlfriend who is unemployed.  Her living is partially funded by him.

15.In mitigation, Ms. WONG submitted that the defendant committed the present offences due to financial hardship.  He stole the food items for self-consumption.  He is remorseful and has made full admissions upon arrest.

16.Ms. WONG further submitted that the defendant was simply an opportunistic thief.  On the 1^st occasion, he went to the Market Building to find a washroom.  He discovered by chance that the Shop had no gate or lock; all the goods were only covered by a cloth after it was closed.  On the 2^nd and 3^rd occasions, he happened to walk by the Market Building again.

17.A letter from the defendant's former employer was placed before me; its contents are duly noted.  Ms. WONG stressed that the defendant has a rehabilitation plan; his former employer praises his performance at work and is willing to re-hire him.

18.Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. There is sufficient social welfare protection in modern Hong Kong for the poor to meet their basic needs (including food).  Being a released prisoner, the defendant must have known how to seek help.

19.The defendant was originally charged with 3 "Burglary" offences.  For undisclosed reasons (perhaps technical ones), the prosecution amended the charges to "Theft".  I need not speculate on the reasons for doing so. I shall sentence the defendant on the basis of "Theft".

20.The nature of Charges 1 to 3 is akin to "shoplifting", of which the defendant is no doubt a "repeated offender".  A sentence with deterring effect is thus required.  Furthermore, the repeated stealing from the same premises (3 times) in less than 2 months also constitutes an aggravating factor.  I consider 12 months' imprisonment to be the appropriate starting point for each charge.  A one-third discount is given for the guilty plea, reducing the sentence to 8 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence the defendant to 8 months' imprisonment each for Charges 1 to 3.

21.Each offence is separate and distinct.  Having considered the totality principle, however, I order the sentences to run in the following manner :-

(i) 2 months in Charge 2 consecutive to Charge 1; and

(ii) 2 months in Charge 3 consecutive to Charges 1 and 2.

Thus, arriving at a total prison term of 12 months.