HKSAR v. CHUNG TIN FOOK

DCCC 84/2019

[2019] HKDC 682

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 84 OF 2019

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Reasons for Sentence

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Charge

1.  The Defendant pleads guilty to a charge of burglary of a shop.   

Facts

2.  “Toko Indonesia Rita Limited” is a sundries shop situated at Shop No. 107, 1^st Floor, Bowrington Road Market, No. 21 Bowrington Road, Causeway Bay, in Hong Kong (“the Shop”).  Its opening hours are 8:30 a.m. to 6:30 p.m. daily.

3.  At around 6:30 p.m. on 22 November 2018, the staff of the Shop Ms. Aminah LIE (“PW1”) left after closing the metal sliding gate, but she forgot whether she had locked the combination padlock securing the gate.  When she returned to the Shop at 8:30 a.m. on 23 November 2018, the gate was still closed but the padlock was unlocked without any prize marks on it.

4.  The following items were then found missing from the Shop:-

(a) One black bag containing cash of HK$135,300;

(b) Two “Samsung” tablet computers (valued at HK$1,000 each); and

(c) Cash of Rp30million Indonesian Rupiah (valued at around HK$16,500).

5.  CCTV of the market captured the Defendant wandering around the market at 12:44 a.m. on 23 November 2018.  He was wearing a facemask and a white sweater with some black wordings on the front, and was carrying a green sling bag.  CCTV of the Shop then captured the Defendant ransacking the cashier area of the Shop at 12:47 a.m.  His hair was shaved on both sides with a patch of long hair on the top.  CCTV then captured him carrying a black bag and leaving the market via the rear door at 1:17 a.m.

6.  At 7:32 p.m. on 24 November 2018, PC18570 intercepted the Defendant in Wanchai as he resembled the male captured in the CCTV footage.  He was carrying a green sling bag similar to the one captured in the footage.

7.  The Defendant was then arrested for “Burglary”.

8.  The Defendant had on him cash of HK$4,109.7, one blue facemask, one Samsung mobile phone and one receipt dated 23 November 2018 for the purchase of the Samsung mobile phone.

9.  The sweater that the Defendant had worn during the offence as captured by CCTV was seized from his home.

10.  At the material times, the Defendant had entered the Shop as a trespasser and stole therein.

Sentencing considerations

11.  The sentencing guidelines indicate 30 months’ imprisonment for a first offender of full age who commits a burglary on non-domestic premises (R v Wong Man [1993] 1 HKC 80).  This sentence already includes a certain degree of planning (HKSAR v Sim Ka Wing CACC 450/2000).   

Mitigation

12.  The Defendant is 51 years of age, of primary school education level.  He was a divorcee.  He had no contact with his ex-wife and his son.  He lived with his younger sister.  At the time of arrest, he was a casual transportation worker. As his income was low and unstable, he committed the present offence.

13.  He had 2 robbery records in 1985 and 2005, resulting in TC order and 32 months respectively.  He had no other records for dishonesty offences. 

14.  His solicitor Mr. Tang submits that there are no aggravating factors in the Defendant’s sentence whether based on the Defendant’s antecedents or the facts of the case.  I do not entirely agree with this.  I consider the property lost to and unrecovered by the Shop, equivalent to HK$153,800, outside the range of the customary starting point of 30 months.   

Sentencing the Defendant

15.  I take a starting point of 33 months to reflect the customary starting point aggravated by the property lost to and unrecovered by the Shop.  There is a one-third discount for his plea of guilty.  I order the cash found on him at arrest, HK$4,109.70 to be compensated to the Shop and also reduce his sentence by about 2 weeks.  His sentence is 21 months 2 weeks.