HKSAR v. CHEUNG HIU YIN

DCCC 439/2023

[2024] HKDC 524

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 439 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant pleaded not guilty before me to a charge of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210. Particulars are that she, on 14 May 2020, in Hong Kong, having entered as a trespasser part of a building known as Ground Floor, Shop B, Nos 3-19 Hong King Street, Yuen Long, New Territories, stole therein cash of $450,000 Hong Kong currency.

2.  However, she pleaded guilty to Theft of approximately $14,000 Hong Kong currency on the same date and at the same place.  That plea was not acceptable to the prosecution.

3.  A trial was rendered necessary to determine the correct verdict.

4.  At the end of the trial, I found the defendant not guilty of the charge of burglary, but guilty of the alternative charge of theft which the defendant has already pleaded to.  I found the amount of cash stolen to be approximately $14,000 because that was the amount admitted to by the defendant under the plea, and which was in line with the evidence of PW1 (owner of the restaurant)  as to what was contained in the two drawers from which money was taken.

Facts the basis of sentence

5.  On 14 May 2020, at about 9:45 pm, when the subject restaurant was closed to business temporarily for preparation of the next shift of business which would start at 11 pm, the defendant being a part-time casual worker entered for the purpose of work.  Soon after entry and there being no colleagues around, she approached the cashier counter.  She knelt down in front of the cash register.  She stole cash of approximately $14,000 belonging to PW1 owner of the restaurant from the two metal drawers underneath the cash register.

6.  On 25 February 2023, the defendant was arrested for the offence of “Theft” at Lok Ma Chau Control Point.

Criminal record

7.  The defendant has one previous conviction, not similar.

Antecedents

8.  The defendant is aged 47 (44 at the time of the offence), educated to secondary school level in the Mainland.  She started working at the subject restaurant in 2015.  Defendant is married and lived with her husband and two children (26 and 25)  in Tuen Mun.

Mitigation

9.  Mr Richard Donald of counsel mitigated on behalf of the defendant.  The following is a summary of the mitigation submissions.

10.  The defendant did not flee but she was arrested at the border on her way to visit her sister in the Mainland.

11.  Mr Donald acknowledged that this is a breach of trust case.  He handed up the cases of HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 and HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017 (English Headnote at 1018-1019)  and drew the court’s attention to the relevant bracket of sentence which was below 2 years for stolen amounts of less than $250,000.

12.  Mr Donald also referred to two non-binding sentencing cases HKSAR v Tong Chun Mo [2020] HKDC 731 and HKSAR v Ng Kai Man & Anor [2023] HKDC 1764, which deal with thefts of a smaller sum.

13.  Upon enquiry by the court, Mr Donald submitted that the subject restaurant, though open for business round the clock save and except the transitional period between the two shifts, should not be equated with a 7-Eleven convenience store for the reason that it has not been demonstrated that the restaurant always had a large amount of cash in it.

Sentence

14.  I have to say I do not find the two sentencing cases from the District Court helpful.  They are not binding on this court nor do they deal with similar fact scenarios.

15.  The subject restaurant was a shop open for business practically round the clock with potentially a lot of cash stored therein making it particularly vulnerable to robbery, burglary and theft.  Extra protection must be given to it by way of a deterrent sentence to be imposed on an offender.

16.  In addition, there is a clear breach of trust element in the present offence of theft of which the defendant stands convicted.  Having regard to the sentencing authority of HKSAR v Ng Kwok Wing (supra), and noting a relatively smaller sum that was stolen but nonetheless unrecovered, I adopt a starting point of 20 months’ imprisonment.

17.  The defendant indicated to the prosecution she would plead guilty to theft of a “small amount of cash” after the day on which trial dates were fixed, but some 8 months before the first day of trial for burglary.  In accordance with the authority of HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, and having regard to all other relevant circumstances, I will give the defendant a 25% discount on sentence.

(Defendant, please stand)

18.  The sentence is 15 months’ imprisonment.