HKSAR v. CHAN SIU FUNG

DCCC 1461/2024

[2025] HKDC 780

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1461 OF 2024

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REASONS FOR SENTENCE

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Background

1.  The defendant (“D”)  pleaded guilty to a single count of “burglary” of non-domestic premises, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.

Admitted facts

2.  On 2 December 2023 at about 0400 hours, PW1 (Ms Leung), the cashier of McDonald's at Tin Shui Shopping Centre ("the McDonald's"), saw D at the McDonald's, requesting tissue and paper cups.  The McDonald's operates 24 hours a day.  There was a dessert corner inside the McDonald's with operating hours between 1100 hours and 2200 hours on the material day.  The dessert corner was enclosed by an unlocked leaf door with a height of about 1 meter.  A cashier machine (without cash inside), a scanner, a 7-inch display screen and a 15-inch display screen were placed inside the dessert corner.

3.  At about 0440 hours, PW1 saw D again squatting at the dessert corner.  PW1 reported the case to the manager and D had left when PW1 returned to the dessert corner.  The cashier machine, the scanner and the 7-inch display screen were found missing.  The 15-inch display screen was found damaged on the floor.

4.  The CCTV of the McDonald's ("the CCTV")  showed that: between about 0411 and 0416 hours, D was peeking inside the dessert corner and taking some tissue therein.  At about 0416 hours, D was holding an empty plastic bag at the unlocked leaf door outside the dessert corner.  D was looking at the machines inside the dessert corner.  At about 0417 hours, D entered the dessert corners and disconnected the cashier machine (estimated value: HK$ 1,000), a scanner (estimated value: HK$3,000)  and a 7-inch display screen (estimated value: HK$3,000).  D then packed those items into the plastic bag.  During the process, the 15-inch display screen (estimated value: HK$4,000)  fell onto the floor and was therefore damaged.  The case was subsequently reported to the police.

5.  On 12 January 2024 at about 2010 hours, D was arrested at his residence. Under caution, D remained silent.

6.  In a subsequent record of interview.  D admitted, inter alia, that he wanted to buy food but he did not have money; he therefore wanted to enter the dessert corner to check out if there were any valuables inside; he broke the 15-inch display screen accidentally when disconnecting the machines; he stole the cashier machine, the scanner and the 7-inch display screen by placing them into the plastic bag he brought into the dessert corner; and he identified himself from the CCTV.

7.  On 20 May 2024, PW1 identified D from an identification parade.

8.  At all material times, D entered the dessert corner as a trespasser and stole therein the cashier machine, the scanner and the display screen.

The defendant’s criminal records and mitigation

9.  The defendant has 53 sets comprising of 71 previous convictions, most of them are dishonest related offence.  Last conviction in 2024 is also theft which he received 20 days’ imprisonment.  D is a recidivist. 

10.  In mitigation, Ms Lai, Counsel for D stressed that D pleaded guilty at the first opportunity.  He has a son now 14 years old, living with D’s mother. He is living on CSSA.  

Sentencing consideration and discussion

11.  The conventional starting point for burglary of non-domestic premises committed by a first offender of full age in the absence of aggravating or mitigating factors is 2½ years’ imprisonment (see Attorney General v Lui Kam Chi [1993] 1 HKC 215 and HKSAR v Sim Ka Wing CACC 450/2000).

12.  The aggravating features in this case include the fact that D is a repeated offender.  He has plenty of dishonest related convictions.  Secondly, in attempting to steal, he damaged the victim’s property with value (about HK$4,000).

13.  Having considered Ms Lai’s submissions, which is short and concise, my view is that 3 months’ enhanced sentence should be given for the offence because of the aggravating features (30 + 3).  1/3 discount be given for his guilty plea and that arrived at 22 months for the offence.  The total sentence D has to serve is 22 months’ imprisonment.