HKSAR v. FAN SAU LEUNG AND ANOTHER

DCCC 1162/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1162 OF 2013

----------------------

---------------------

Reasons for Sentence

---------------------

1.  The 1st defendant, Fan Sau-leung, and the 2nd defendant, Man Man-kong, pleaded guilty before me to one count of burglary.

2.  Enoteca is a restaurant situated on the Ground Floor, No 47 Elgin Street.  Its front entrance faces Elgin Street, its rear patio faces the rear lane that can be accessed from the adjacent Shelley Street.  Both the front and the rear entrances of the restaurant are secured with glass doors and key locks.  Neither security device nor CCTV camera was installed. 

3.  D1 and D2 were employees of the restaurant at the material time.  On 28 October 2013 at around 1 am, the manageress of the restaurant secured all the doors there and left. She locked the cashier machine and a red tips box next to it which had inside it a locked wooden cabinet and the key for it.  At around 3 am whilst a team of eight police officers were conducting an anti-burglary operation around Elgin Street, one of the officers spotted that D1 and D2, each wearing a pair of gloves and a black apron entered into an unnamed building at No 49 Shelley Street which was adjacent to the restaurant.  The acts of D1 and D2 alerted the officers.  At around 4.05 am, D1 and D2 left the said building via its rear entrance.  D1 and D2 later entered the rear lane and subsequently climbed the high wall of the restaurant.  At around 5.20 am, D1 and D2 left the restaurant via its main entrance with D2 holding an A4 size transparent zip bag with yellow top and base which was later found to be containing $31,117.80.  D1 and D2 were intercepted by the police at the junction of Elgin Street and Shelley Street. D1 had to be subdued by a police officer.

4.  At around 5.23 am, D1 was arrested by the police.  D1 was cautioned and he admitted under caution that he had burgled one shop.  He was searched and the police found one silver metal clamp from the right back pocket of D1’s trousers, cash of $7,759 from the right front pocket of D1’s trousers, cash of $200 from a brown wallet placed inside the left back pocket of D1’s trousers and one apron.  D1 also told the police that he had left his mobile phone in his shoulder bag which was placed inside a garbage bag at the staircase of No 49 Elgin Street.

5.  Upon interception by the police, D2 separated from D1 and dropped cash, $31,117.80.  D2 was eventually arrested by the police.  The police officers picked up the cash dropped by D2 and counted it.  D2 was searched and the police found cash of $677 from the right front pocket of D2’s trousers, a pawn ticket, two mobile phones, one apron and a pair of gloves.  One of the police officers conducted a sweeping in the vicinity.  He discovered a blue crowbar on the 1st floor of No 49 Elgin Street.  He also discovered at the rear staircase on the 2nd floor of No 49 Elgin Street two garbage bags with numerous items inside which were confirmed to be the personal belongings of D1 and D2.  One shoulder bag containing a white mobile phone was later found inside one of the garbage bags which was confirmed to be D1’s.

6.  At around 10.45 am, the manageress of the restaurant returned and she was informed by the police that the restaurant had been burgled.  Upon checking, she discovered the following:-

a) The red tips box had been forcibly opened and some coins were missing.

b) The key of the wooden cabinet was inserted into the lock of the cabinet instead of being placed inside the said box.

c) Nine plastic bags which were originally kept inside the wooden cabinet of the bar were taken out from the cabinet and cash amounting to $30,804 inside the plastic bags was found missing.

d) A locked grey cashbox was taken out from the said cabinet and was forcibly opened. The cash inside, about HK$16,000, was missing.

e) The rear glass door of the restaurant was smashed.

The manageress confirmed that D1 had been working at the restaurant as a cook since 29 June 2013 and D2 as a part-time cook since 14 October 2013.

7.  The police checked with the pawnbroker in relation to the pawn ticket found from D2 and found nothing incriminating.

8.  In the video-recorded interviews, D1 alleged the matters as stated below:-

He and D2 knew each other for years. He went with D2 for entertainment in Mong Kok earlier and they returned to Shelley Street at around 2 am. They went to the rear staircase of the above mentioned unknown building and placed all their belongings into the two garbage bags. They then climbed into the restaurant and D2 used a hammer which D1 concealed around its rear entrance earlier to break the glass door there. D1 took out the key from the unlocked red tips box and opened the wooden cabinet inside the bar with it. He took away the locked grey metal cashbox, prized open it, took and put all the money into his right front trousers pocket. D1 took away the plastic bags containing money from the cabinet. For the cash of $7,959 found on him, $7,700 of which was stolen from the restaurant. The $200 cash in a wallet was also D1’s and not stolen from the restaurant.

9.  In the VIRs of D1 and D2, they each alleged that D2 told D1 earlier that he needed money and D1 suggested committing the present offence with the money stolen to be split equally between them.  They alleged that they had not made any plans for committing the offence.  D2’s version essentially corroborates with D1’s.  D2 alleged that they stayed in the restaurant for about an hour because they had spent most of the time trying to prize open the glass door of the rear entrance which he eventually smashed with a hammer.  He also took away the plastic bags containing money, as D1 mentioned, and had thrown them away when the police chased them.  At all material times, D1 and D2 entered the restaurant as trespassers and stole therein a total of $38,817.80.

10.  The criminal record of D1 shows that he had been convicted for 26 offences on a total of 19 occasions.  He has a total of 18 dishonesty-related convictions. 

11.  In the case of D2, he had been convicted of 15 charges on 13 occasions.  Six of the offences were dishonesty-related. 

12.  Mr Chan told me in mitigation that D1 is now 42 years old.  He had received education up to Form 3.  Before his remand, he was living at Kwai Chung with his wife, 28 years old, and two sons both born by his former girlfriend.  Now that D1 is in custody, his wife needs to work.  The two sons of D1 aged 14 and 16 are attending secondary school.  The parents of D1 are in their seventies and are living apart.  In the past, D1 had worked as a transportation worker and a cook.  He earned about $12,000 per month and was the breadwinner of the family.  

13.  As for the commission of the offence, Mr Chan told me that D1 and D2 are friends that have known each other for years.  Mr Chan told me the head cook of the restaurant had been very mean to D1 and D2, he exploited them and refused to pay them salary for their overtime work.  D1 joined the restaurant in question after his discharge from prison.  The employer was aware of the conviction records of D1 and he decided to hire D1 despite the record.  Since the head cook joined the restaurant, things changed.  After the head cook knew that D1 and D2 had criminal records, he insulted D1 and D2 on many occasions and he pressurised D1 and D2 to resign.   Mr Chan told me the day before the incident in question, after D1 and D2 went off-duty, they went to Mong Kok for a meal.  D1 and D2 were both very frustrated by what happened to them, they drank some beer and they decided to burgle the restaurant, ie their place of work. 

14.  D1 is now very remorseful for what he had done.  For D1’s mitigation, Mr Chan pleads that D1 pleaded guilty at the first available opportunity, hence saving court’s time and police resources.  He committed the offence out of foolishness, frustration, bitterness and impulse.  He was also under influence of alcohol at the time. 

15.  At one stage Mr Chan submitted that the tools found at the scene were not carried to the scene by the defendants, they found the tools at the scene.  I pointed out to Mr Chan that according to the brief facts admitted by D1 and D2, the hammer was something concealed by D1 around the restaurant’s rear entrance earlier. Mr Chan did not press on. 

16.  Mr Chan submitted that D1 is a good husband a good father and the sons of D1 are in need of financial support and fatherly love from D1.  Now that D1 is in custody, he misses his wife and his sons.  He is now attending a Christian fellowship.  Mr Chan says with the help of God, D1 hopes that he will reform.

17.  As for D2, Mr Chan told me D2 divorced his wife in 2012.  Before his remand, he was living with his mother and his younger brother.  After he completed Form 5, D2 worked as a construction site worker and a transportation worker.  He pleaded guilty to the offence.  As in the case of D1, he committed the offence out of foolishness, frustration, bitterness, impulse and was under some influence of alcohol.  As in the case of D1, D2 has also joined a Christian fellowship. 

18.  As rightly pointed out by Mr Chan, for burglary of non-domestic premises a starting point of 30 months’ imprisonment is appropriate.  That is the starting point after trial and in the absence of aggravating features.  But D1 has an appalling criminal record.  Both D1 and D2 committed the offence in breach of the trust imposed on him by their employer. 

19.  This case involved the use of housebreaking instruments, a hammer was used and damage was done to the restaurant. As stated in the summary of facts, the glass door of the restaurant was smashed.  D1 and D2 had acted in concert.  All these features aggravated the seriousness of this case.  A higher starting point is called for.

20.  On the facts of this case, in the absence of aggravating features a 30 months’ imprisonment is appropriate.  In my judgment, the breach of trust element aggravates the seriousness of this case by 3 months and that brings the sentence up to 33 months.  And the use of housebreaking instruments and the smashing of the glass door further aggravates the seriousness and brings the sentence up by 3 months to 36 months.  D1 and D2 acted in concert, it aggravates the seriousness by 3 months and brings the sentence up to 39 months. 

21.  As I said, D1 has an appalling criminal record, it calls for a higher starting point.  In the case of D1, a take a starting point of 42 months’ imprisonment.  For the reasons given, I take a starting point of 39 months for D2.  D1 and D2 will be given a one-third reduction for their guilty pleas, that would bring D1’s sentence down to 28 months and that of D2 down to 26 months.

22.  The only mitigating factor in this case is the guilty pleas of D1 and D2.  Mr Chan told me in mitigation that D1 and D2 had a meal in Mong Kok before the commission of the offence and they were drunk to some extent.  It did not sit well with the facts admitted by D1 that D1 had concealed a hammer around the rear entrance of the restaurant earlier.  The fact that D1 had concealed a hammer around the rear entrance of the restaurant also militates against the plea that they were acting out of impulse.  Obviously, monetary reward was the main reason why D1 and D2 committed the offence.  As said by D1 and D2 in their VIRs, D2 told D1 earlier that he needed money and D1 suggested committing the present offence with the money stolen to be split equally between them.  Apart from the guilty pleas of D1 and D2, I can see no other mitigating factor that can further reduce the sentence.

23.  For the reasons given, I sentence D1 to 28 months of imprisonment and D2, 26 months.