HKSAR v. NGAI SAN CHEUK

DCCC 404/2021

[2021] HKDC 1118

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 404 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to one charge of burglary[1]. Particulars are that he on 26 December 2020, having entered as a trespasser part of a building known as ‘Present’, Shop No 4, Ground Floor, Phase 1, Greenfield Garden, No 1 Fung Shue Wo Road, Tsing Yi, New Territories, stole therein cash of $2,150.

Summary of facts

2.  ‘Present’ is a restaurant at the charge address.

3.  Closed circuit television cameras captured the masked defendant entering the shop at around 1:04 am on the charge date with a key.  He stole $2,150 from the cash register, which had $6,000 inside, and left 3 minutes later.

4.  The person in charge of the restaurant recognized the defendant from the footage as the person who started working there in July 2019 and had failed to show up for work since November 2019.  The defendant had not returned his key to the restaurant.

5.  The defendant was arrested at home on 31 December 2020.  He admitted under caution to committing the offence out of greed.  In a later video recorded interview, the defendant further admitted that he had kept the key to the restaurant and used it to enter and stole the cash.  He said he threw away the stolen money and the key in a rubbish bin in Tsing Yi Pier afterwards because he regretted the stealing.

Previous conviction

6.  The defendant has one previous conviction for conspiracy to defraud in 2013.  He was in breach of the Community Service Order imposed for that conviction and was sentenced to 4 months’ imprisonment.  However, given the lapse of time, I will not enhance the defendant’s present sentence on the basis of him being a habitual offender.

Background and mitigation

7.  The defendant was born in Hong Kong and is 28 years old.  He studied up to Form 3 level, quit school and began working.  Over the years, he had worked as a waiter, bartender, restaurant manager and pier surveying worker.  Prior to his arrest for the present offence, he was a part-time food and beverages supervisor, earning around $17,000 per month.

8.  The defendant is single and lives with his parents and younger sister.  His 71-year old father is retired and was diagnosed with colon cancer in June 2021. The defendant’s 66-year old mother is a homemaker but her hands are always swollen from neurological problems and had undergone surgery 3 years ago.  The defendant’s sister is a part-time salesperson.

9.  Ms Wu for the defendant told the court that the defendant’s only previous conviction involved the use of information from job applicants being used for loan applications.  The defendant was 18 at the time of the commission of the offence although by the time he had been convicted he was 20 years old.  The defendant had been hard at work afterwards to pay off those loans.

10.  In relation to the present case, the defendant said he had worked for about 4 months at the victim restaurant and had left after quarrelling with his supervisor about wages and employment terms.  He never formally quit and did not return the key, which he used to keep in his bag.  The defendant had intended to return the key but since he was reluctant to contact his former employer, he had forgotten about it.

11.  On the night before the incident, the defendant was drinking at his friend’s home, which was near the restaurant, to celebrate Christmas.  Their conversation turned to how the defendant felt he had been treated unfairly by the restaurant and that made him unhappy and he ended up consuming a lot of alcohol.

12.  At around 1 am, the defendant walked past the restaurant on his way home.  Under the influence of alcohol, and still feeling angry about the unfair treatment he received, the defendant remembered that he still had the key to the restaurant.  Out of greed, he wanted to get back what he deserved and so committed the burglary impulsively.  He threw away the key into a nearby rubbish bin afterwards.

13.  On his way home after the burglary, because he had drank so much he fell asleep at Tsing Yi Pier.  Once he awoke and became slightly more clear headed, he felt remorseful and foolish for what he did.  Since he had already thrown the key away he could not return the money.  He felt scared and did not know what to do, so he also threw the cash into the rubbish bin.

14.  Since his arrest in this case, the defendant’s relationship with his parents have improved.  Seeing his aged parents visit him despite the long commute made him feel guilty.  The health condition of the defendant’s father has been deteriorating and he has not been able to visit the defendant since April.  He also had his pancreas removed just a short while ago, with further surgeries and chemotherapy scheduled.  The defendant’s mother is also waiting for another surgery on her hands.

15.  The defendant is determined he will be a better son upon release and will not break the law again.

16.  In relation to sentencing, Ms Wu pointed out that the defendant did not use any tools to gain entry and that there was no ransacking nor damage to property.  The cash register was not emptied.  The defendant is not a professional burglar and acted out of impulse and the influence of alcohol.  He was foolish and acted alone.  There was no sophistication in the commission of the offence and no premeditation.  The defendant is willing to compensate the restaurant for the full amount stolen.

17.  Lastly, Ms Wu reminded the court that the defendant admitted to the offence and pleaded guilty at the earliest opportunity.  He blames himself for letting his parents down and is determined to turn a new leaf.

Sentence

18.  The maximum sentence for the offence of burglary on conviction upon indictment is that of imprisonment for 14 years.

19.  The usual starting point for burglary of a non-domestic premises is that of 30 months’ imprisonment after trial, subject to any aggravating or mitigating features[2]. The former would include professional criminals planning the burglary with meticulous care and stealing goods and cash of considerable value, while the latter would include the sneak thief who walks into an open office to steal whatever he or she can find.

20.  According to the summary of facts, there was $6,000 cash in the cash register on the night of the defendant’s burglary.  Yet the defendant only took $2,150, lending credibility to counsel’s assertion that he was acting out of impulse and disgruntlement towards the restaurant, alongside a certain amount of greed.

21.  The defendant did wear a mask when he committed the offence.  But then, face masks were worn by everyone at the time of the offence and it does not necessarily mean that the defendant was trying to hide his face from the CCTV cameras, which would have suggested premeditation.  It does, however, at least suggest that the defendant was not so drunk as to not be aware that he should be wearing a face mask.

22.  The defendant had worked for 4 months in the restaurant and must have been aware of their CCTV system.  He must have known that when the money was found to be missing and the CCTV footages reviewed, he will be caught.  It would suggest that the defendant was indeed acting without much thinking when he decided to use the key to enter the restaurant to steal.

23.  Having said that, the defendant did so happen to have the key in his bag and did use it to gain entry.  I find that this is not a case of the defendant being an opportunistic burglar.

24.  Although guideline sentences are not fixed nor compulsory, and can be departed for good reason, “this can only be done when, as a matter of sentencing policy or principle, it is appropriate to do so.”  As McWalters JA noted in HKSAR v Yasmin, CACC 360/2016, “…courts have always been willing to depart from a sentencing norm or a usual sentencing practice when a defendant’s circumstances were so extraordinary or exceptional to justify it.[3]”

25.  While I do have some sympathy for the defendant’s personal circumstances, I find that they are not extraordinary nor exceptional to the extent that there should be a departure from the usual sentencing starting point.

26.  More often than not offenders are driven by greed or stupidity or both when committing an offence, just as the defendant was.  If the defendant’s sentence is reduced because of his personal circumstances and mundane excuse for committing the offence, others with similar circumstances but who were sentenced in accordance with the tariff sentence would likely feel aggrieved, and justice would not have been served.

27.  I will, therefore, adopt the usual 30 months starting point. Subject to the mitigating factor of restitution below, the defendant’s sentence after plea is 20 months’ imprisonment.

Restitution

28.  It is trite law that restitution is a mitigating factor and that a specific discount, in addition to the one-third discount for pleading guilty, should be applied[4].

29.  The defendant has not yet made full restitution at the time of his sentencing hearing.  The reason is because his father’s health condition has deteriorated and the cancer has spread so quickly and widely that surgery is no longer an option and they have to proceed to chemotherapy.  I accept that payment of the money would not have been at the forefront of the defendant’s mind and it would make him feel even worse to have to remind his family to come up with the money while they try to figure out how best to assist his father.

30.  Although the defendant was unable to make full restitution prior to sentencing, Ms Wu confirmed that arrangement has been made and the money will be paid through the solicitors later today.

31.  I will, therefore, make an order for compensation in the amount of $2,150, to be paid within 3 days, but will proceed to sentence the defendant on the basis that he has made full restitution and deduct 3 months from his sentence after plea.

32.  The defendant is sentenced to 17 months’ imprisonment.