HKSAR v. FAN WING KIN

DCCC 1041/2023

[2024] HKDC 1083

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1041 OF 2023

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Reasons for Sentence

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1.  The defendant pleaded guilty to one count of burglary. He was convicted accordingly.

Brief Facts

2.  At about 9 am on 22 July 2023, Ling Wai-kit (Ling), the manager of Café De Coral (the restaurant), which was situated at Nos. 36-40 Soy Street, Mong Kok, put his Lenovo notebook computer on top of the cashier counter. 

3.  In the early morning on the following day, Ling went back to the restaurant and left the rolling gate of the restaurant ajar. At about 6 am on the day, Ling was told by a passer-by that a man had taken away a book-like object from the restaurant.  Ling discovered that the said notebook computer was stolen. 

4.  The CCTV in the restaurant captured that at about 5:46 am, the defendant entered the restaurant through the half-opened rolling gate and he took the computer away from the cashier counter. 

5.  The defendant was arrested on 28 July 2023. Under caution, the defendant confessed that he stole the notebook from the cashier counter when he found there was no one inside the restaurant.  He has sold the computer for $500.

Mitigation

6.  The defence said the defendant originally entered the restaurant with a view to have breakfast there.  Nevertheless, when he found there was no one in the restaurant and out of greed, he stole the computer, which was placed on the cashier counter. 

7.  He pleaded guilty at the first opportunity and admitted that he was an opportunistic thief.  He entered the restaurant when the rolling gate was half-opened.  He stole the computer out of momentary greed.

8.  The defendant is now aged 43 and divorced.  He has one daughter who is living with his ex-wife.  He was out of work since April 2022 due to the COVID pandemic. 

9.  The defendant made full and frank admission and is deeply remorseful.  He plans to take up further study with a view to becoming a medical care worker.

10.  The defence urged the court to consider a lower starting point despite the usual 2½ years starting point for burglary cases involving non-domestic premises.  The defence also submitted that the totality principle should be applied relating to the current burglary case and the 2 theft convictions back in December 2023.  The defendant was sentenced to 12 months’ imprisonment and ordered to pay a compensation of $8,000 on the last occasion.  The date of the defendant’s last discharge should be 10 April 2024 (not 16 October 2020 as stated in the antecedent statement), and he was remanded in jail custody since then because of this burglary offence.

Sentence

11.  The defendant is aged 42 and is about to have his birthday next month.  He was born in Hong Kong and reached high diploma education level.  

12.  This is a simple opportunistic burglary case.  I accept that the defendant did not premediate this crime.  He did not use any equipment to break in but just walked in through the half-opened gate.  He succeeded to steal the computer and got an illicit gain of $500.

13.  On the other hand, I have to consider the defendant’s last 2 theft convictions back in December 2023 in order to be fair to the defendant on the basis of totality principle.  I was told that the 2 theft cases he was convicted were committed on 21 July and 23 July 2023 respectively.  That means the defendant committed the 2^nd theft case on the same day that he committed this burglary case.  The defendant committed the offence when he was literally speaking on police bail relating to another allegation of “theft of vehicle” (WCH/22036563: see Part B of the criminal record).  I was told this case of theft of vehicle is still under investigation. 

14.  In my view, it is advisable that this burglary case could be dealt together with the 2 theft charges, so that the sentences can be passed in the light of the totality principle.  By now, the defendant has served all his previous sentence.  Hence, I could not make part of the sentence concurrent. 

11. Taking all factors into consideration, I would take a lenient view and adopt a starting point of 24 months, instead of the usual 30 months. I will give the usual one-third discount upon the defendant’s plea, and reduce the sentence to 16 months. To be fair to the defendant and based on the totality principle, I further reduce the sentence by 2 months and sentence the defendant to 14 months’ imprisonment.