HKSAR v. LEE CHEUK YIN

DCCC 304/2019

[2019] HKDC 1307

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 304 OF 2019

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Burglary". He burgled a restaurant situated at a cooked food stall cluster in a public housing estate and stole cash in the sum of about $2,000.

Summary of Facts

2.  About 5:30 a.m. on 24 January 2019, Mr. LEE, an employee of the restaurant particularized in the Charge ("the Restaurant"), showed up for work and found a cash box containing about $2,000 missing from the cashier counter.  He informed the owner of the Restaurant Mr. Wong (PW2).

3.  CCTV footage revealed that about 4:25 a.m. on the same day, a male entered the Restaurant through an unlocked door and stole the cash box from the cashier counter.  The Police was alerted.

4.  In the same evening, the defendant was arrested by patrolling police officers.  Under caution, he admitted having entered the Restaurant in the early hours that day and taken the cash box.  He repeated the same admission in his video recorded interview.  He confirmed that the clothes seized from his home were worn by him at the time of the offence.

Mitigation & Sentence

5. The defendant is 28 and married with no children. He has 2 conviction records, but none of which is "theft-related". Defence counsel Mr. Yuen informed me that prior to his arrest, the defendant worked as a cook earning about $17,000 per month. PW2 and the defendant were schoolmates; the defendant had worked in the Restaurant before.

6. In mitigation, Mr. Yuen submitted that when the defendant committed the present offence, he was no longer PW2's employee. Hence, no breach of trust was involved. Furthermore, the door of the Restaurant was not locked; the defendant did not use any tools or force to break into the premises. On this basis, Mr. Yuen submitted that a lower starting point is justified in this type of "walk-in" burglaries[1].

7. 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. I accept that for the purpose of sentencing, the door of the Restaurant being unlocked is to the defendant's benefit. On the other hand, having worked there before allowed him the opportunity to gain familiarity of the premises. It is plain that he took advantage of his familiarity of the Restaurant in committing the burglary. On this basis, I cannot treat him as a "walk-in" burglar.

8. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. Had the defendant not been an employee of the Restaurant, considering its door not being locked; the value of cash stolen; no tools were used; and no person was alarmed, a lower starting point can perhaps be justified in the present case. Regrettably, the defendant's status as a former employee of the Restaurant would practically neutralize all the favourable factors.

9. Bearing in mind that the defendant has no previous conviction of "theft-related" offences, I am prepared to adopt 27 months' imprisonment as the starting point. 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. I sentence the defendant to 18 months' imprisonment.