HKSAR v. CHUCK SZE MING AND ANOTHER

DCCC 153/2022

[2022] HKDC 1132

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 153 OF 2022

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REASONS FOR SENTENCE

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1.  D1 was convicted of 2 counts of burglary (1^st charge and 3^rd charge), while D3 was convicted of a count of burglary (1^st charge), on their own pleas and agreement to amended Summary of Facts.

2.  As for the 2^nd charge against D1 and the 3^rd charge against D3, they were both put on court file and not to be proceeded with without leave of the court.

Facts

1^st Charge

3.  At around 0600 hours on 6 May 2021, manager of Chui Ho Restaurant, Shops Nos M001-M003, Shek Ping House, Long Ping Estate, Yuen Long, New Territories (“the premises”), found that the glass door of the premises was broken.  Upon checking, one safe (“stolen safe”, valued at $2,500)  containing cash of $32,799 was missing. 

4.  CCTV of and outside the premises captured D3 entered the premises by breaking the glass door of the premises and ransacked the premises.  D3 then left the premises with the stolen safe and passed the stolen safe to D1 outside the premises, and D2 wandered outside the premises.

5.  CCTV of Yuccie Square in Yuen Long, which was opposite to D1’s residence, captured D1 and D2 later alighted from a taxi and took out the stolen safe from the boot of the taxi.  D1, D2 and D3 entered into the lobby of D1’s residence with D3 carrying the stolen safe, which was partly covered by a green jacket, and they all entered the lift.  Later, D3 carried what appears to be the stolen safe covered with a blue cloth and took the lift from the 16^th floor to the ground floor.

6.  CCTV of the refuse collection point of Yat Long House captured D1 and D3 later disposed what appeared to be the stolen safe covered by a blue cloth at the refuse collection point.

7.  On 12 May 2021, the stolen safe was found prised open and covered by a blue bedsheet at the refuse collection point.

3^rd Charge

8.  At around 0645 hours on 20 July 2021, when staff returned to a 7-Eleven convenience store situated at Ground Floor, No 71 Sau Fu Street, Yuen Long, New Territories, she found that the glass door of the 7-Eleven store broken and the store ransacked.  Upon checking, amongst other things, one cashier register (valued $1,755)  containing cash of $2,000 were missing.  The repair costs of the broken glass door was $12,000.

9.  CCTV of and outside this 7-Eleven store captured that on 20 July 2021 at around 0345 hours, the glass door of the 7-Eleven store was broken and D1 was trying to break into the store, and then he exchanged his flipflops with a man for the man’s sneakers.  Later, on the same day, the CCTV of the lobby and the lift of D1’s residence captured D1 carrying what appears to be a cashier register, and another man, who was holding an opened umbrella, entered the lobby of D1’s residence to take the lift.

Criminal Record

10.  D1 has 36 previous records involving convictions of 51 charges, 41 of which relating to dishonesty, 35 of which are theft-related, and one burglary conviction.

11.  D3 has 16 previous records involving convictions of 39 charges, of which 13 are theft-related and two are burglary convictions in 1996 and 2017.

Mitigation

D1

12.  D1 is now aged 51.  He is divorced.  He used to live alone in a public housing estate in Yuen Long.  He received education up to Form 1 and had previously worked as a hairdresser for 10 years, earning $10,000 to $20,000 a month.  Before his arrest, he has worked as a salesman for a seafood wholesaler, earning $20,000 a month.

13.  It was submitted by defence counsel that D1 became unemployed at the material times due to COVID-19 pandemic in Hong Kong.  He was therefore in financial straits and he committed the present offences out of greed.  It was said that he only received $1,800 for the 1^st charge offence and he received nothing for the 3^rd charge offence.

14.  It was said that D1 admitted his offences upon arrest and he pleaded guilty with genuine remorse.

15.  Defence counsel conceded that for burglary offences relating to commercial premises, the usual sentencing starting point is 2½ years’ imprisonment.

16.  Defence counsel also referred this court to authorities where the appellate court considered persistent offender being an aggravating factor in sentencing.

17.  Defence counsel urged this court to consider the totality principle, citing the case of HKSAR v Leung Chi Wai [2018] 5 HKLRD 237.  He also asked this court to be lenient on the defendant.  He handed to court the mitigation letter from the defendant showing his remorse and determination to start afresh.

D3

18.  D3 is aged 41.  He is single.  He has a son aged 19 from his former relationship with a girlfriend.  He has received education up to Form 1.  Before his arrest, he was a construction/delivery worker, earning $12,000 per month. He lives with his father aged 77 and his son.

19.  Defence counsel urged this court to accord the defendant one-third sentencing discount by reason of his guilty plea.  He also urged this court not to consider D3 as a persistent offender and not to enhance the sentencing starting point.

20.  He has also submitted on D3’s behalf that D3 has, via his sister, paid $10,000 as compensation to the victim of the 1^st charge.   Defence counsel asked this court to accord defendant further sentencing discount by reason of this compensation.

Discussion

21.  Before sentencing, this court has carefully considered all that was said and submitted on behalf of D1 and D3.

1^st Charge

22.  D1 and D3 acted together with D2 as a joint enterprise in the commission of this offence.  There was clearly a division of labour.  Each has a separate role, and the role of the D1 and D3 is paramount in importance, as supported by the CCTV footage and as illustrated by the amended Summary of Facts.

23.  The restaurant is a non-domestic premises.  It is accepted that the value of the property stolen is of modest value and that no one is expected to be within the restaurant at the time. 

24.  It is well established that the sentencing starting point for burglary involving non-domestic premises with some sort of planning, as in the present case, is 30 months’ imprisonment (See R v Wong Man [1993] 1 HKC 80). 

25.  The same, however, is enhanced by 3 months by reason that three people were involved in the commission of this offence as a joint enterprise.

26.  From the criminal record, one could see that since the year 1983, when D1 was aged 12, he had continuously been committing crimes involving dishonesty.  He is clearly a persistent offender of theft-related crimes.  This is an aggravating factor in sentencing.  The sentencing starting point is therefore enhanced by 3 months to 36 months’ imprisonment for the 1^st charge for D1.

27.  As for D3, the court noted that save for the burglary conviction in 2017, he has not been committing crimes of dishonesty since 2003.  On this occasion, the court is not going to enhance the sentencing starting point for the 1^st charge.

28.  Both defendants have pleaded guilty and are therefore entitled to full one-third sentencing discount.

29.  It is also well established that committing crime for greed or for monetary gain because of financial problem is not a valid mitigating factor.

30.  For the 1^st charge, D1 is therefore sentenced to 24 months’ imprisonment.

31.  D3 has today paid $10,000 to compensate the victim in the 1^st charge.  That is roughly one-third of the loss to the victim.  This amounts to a valid mitigating factor, although he did not fully compensate the victim.  On this occasion, the court is willing to accord him 2 months’ sentencing discount.

32.  Accordingly, D3 is sentenced to 20 months’ imprisonment.

3^rd Charge

33.  The convenience store is a non-domestic premises.  Two persons, including D1, took part in the commission of this offence.  Property loss to the victim totalled $15,755, being $1,755 for the cash register and $2,000 cash as well as $12,000 repair fee for the glass door.

34.  Again, the sentencing starting point is 30 months’ imprisonment, and is aggravated by 3 months as two persons took part in the commission of this offence.  The same is further enhanced by 3 months as D1 is a persistent offender.

35.  By reason of D1’s guilty plea, he is entitled to full one-third sentencing discount.  He is therefore sentenced to 24 months’ imprisonment for the 3^rd charge.

36.  Coming to consider the totality principle in the case of D1, the 1^st charge offence and the 3^rd charge offence took place 2½ months apart, involving different premises and different victims.  They are separate incidents.  Commission of the 3^rd charge clearly added to the culpability of D1.  This court considers that the just and proportionate sentence for D1 in this case, considering his total culpability, is 34 months’ imprisonment.

37.  Accordingly, 10 months’ sentence of the 3^rd charge is to run consecutive to the sentence in the 1^st charge, the rest to run concurrently.

38.  Therefore, D1 is sentenced to 34 months’ imprisonment and D3 is sentenced to 20 months’ imprisonment in this case.

39.  This court will not activate the suspended sentence imposed on D3 (FLS/2190/20)  as the date of sentence of that case was later than the date of commission of the offences in this case.