HKSAR v. WAN CHI SING (also known as WAN CHI SHING)

DCCC 501/2020

[2021] HKDC 693

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 501 OF 2020

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Burglary". He burgled a bar and stole several toy items which were for decoration.

Summary of Facts

2.  The burgled premises are a bar situated at Ground Floor, No.161A Sai Yeung Choi Street North, Mongkok ("the Bar").  Its name was "Abcb" and the owner was Mr. Wong (PW1).  In early May 2020, the Bar was under renovation.

3.  Between 10:00 p.m. on 6 May 2020 and 6:30 p.m. on 7 May 2020, the Bar was left unattended during various intervals.  PW1 placed 3 figurines of characters from the movie JAWS, a portable video game console, a cartoon mask and a poster of JAWS (respectively E1 to E6) on a table.  The metal gate of the Bar was half-closed, whereas the glass door was closed but not locked.

4.  On 11 May 2020, PW1 discovered E1 to E6 missing.  CCTV footage of the Bar captured the defendant (in a red T-shirt, dark shorts and a mask) peeping into the Bar from outside around 5:40 a.m. on 7 May 2020.  He then opened the glass door and walked into the Bar.  He took away E1 to E6 and left.  PW1 recognized the defendant as he had seen him wandering outside the Bar several times before.

5.  About 11:00 p.m. on 14 May 2020, PW1 saw the defendant wandering outside the Bar again.  He alerted the Police and then intercepted the defendant.  The Police arrested him upon arrival.

6.  The defendant's home in Lai Chi Kok was searched under a warrant on 16 May 2020.  A paper box containing E1 to E6 was found in the dining room.  Subsequently, PW1 identified E1 to E6 as properties belonging to him.

Mitigation & Sentence

7.  The defendant is 54 and single. He has 23 conviction records, which included 5 "Theft" offences. The defendant informed me that he resides with his younger brother. Prior to his arrest, he was a self-employed recycling worker earning $5,000 to $6,000 per month. He received no social welfare.

8.  In mitigation, the defendant submitted that he did not enter the Bar forcibly and no tools for breaking-in were used. He claimed that at the time of the offence, he was looking for a pub to get drunk. After he entered the Bar, he took the items out of momentary greed. He thought the toys on the table were gifts for customers. The defendant stressed that he did not take any valuable items from the Bar such as alcohol or cash. A pastoral letter was placed before me; its contents are duly noted.

9.  The defendant's criminal record is appalling, but I accept that he is a fresh offender in terms of "Burglary". On the other hand, he is no stranger to the "Theft" offence. For his latest offence (which was unrelated to "Theft" or dishonesty), the defendant was sentenced to 5 months' imprisonment in late December 2019. He was released from prison on 24 March 2020. In less than 2 months, he committed the present offence.

10.  The normal starting point for non-domestic burglary is 2.5 years' imprisonment. Although he claimed that he did not break into the Bar, the premises being left unattended did not in any way serve as an invitation for the defendant to go in to steal. In any event, for his benefit, I accept that there is a slight element of "opportunistic burglary".

11.  I consider a starting point of 27 months' imprisonment appropriate and just for the present charge. With the timely guilty plea, the sentence is reduced to 18 months. Apart from this, I see no other mitigating factors which warrant any further reduction of the sentence. I sentence the defendant to 18 months' imprisonment.

Disposal of Exhibits

12.  In its written application for disposal of exhibits ("the Application"), the prosecution seeks an order for, inter alia, the return of E1 to E6 to PW1. The defendant objected to this arrangement. He explained that he had stolen similar figurines of Chief Brody, Hooper and Quint from the Bar; however, when he got home, he discovered that he already owns the figurines of those 3 characters, which he had purchased from a shop. As a result, he threw away the 3 stolen figurines. The defendant claimed that items 8 to 10 on the Application in fact belong to him and that they are special edition; whereas the stolen figurines are not. He placed a copy of his cautioned statement before me as proof of his story.

13.  I have read the defendant's cautioned statement. I have also viewed the 3 figurines. Prosecuting counsel Mr. Poon has helpfully pointed out the location of the serial number; they are embossed on the back of the packaging cardboard right above the Facebook logo.

14.  Being able to say that the figurines bear serial numbers does not prove ownership. Although the serial numbers are colourless, they are clearly visible. Claiming to be a toy enthusiast, the defendant must have had ample opportunities to study and examine the stolen figurines between 7 and 14 May 2020. In fact, he had a week to do so. I am not at all impressed by the basis of his assertion of ownership. Contrary to his current claim, the defendant has specifically denied in his cautioned statement that the figurine of Hooper belongs to him[1]. He tried to explain in court that he was deliberately playing a trick on the Police when he answered that particular question. Simultaneously, the defendant criticized PW1 for failing to mention any of the special or unique features of the stolen figurines in his witness statement(s), which shows that PW1 is less likely to be the owner of items 8 to 10 on the Application. I simply disagree. Giving witness statement(s) about a burglary is not a contest of expertise in figurines of characters in JAWS. Photographs of the Bar clearly show that JAWS merchandise and toy masks are part of its interior decoration[2].

15.  I do not believe the defendant's claim. If he was a toy enthusiast as he claimed, he would not have stolen figurines which he already owns. I do not believe that items 8 to 10 on the Application are special edition figurines either. According to common sense, special edition merchandise would normally state so on their packaging. There is no such indication on them.

16.  Based on the reasons stated above, I order that items 8 to 10 on the Application be returned to PW1.