HKSAR v. FU WAI KEUNG

DCCC 242/2018

[2018] HKDC 964

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 242 OF 2018

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Reasons for Sentence

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1.  The defendant has pleaded guilty to two charges: firstly, theft; and secondly, burglary; both occurring on the same day at the Harbour Grand Hotel in Kowloon.

2.  The facts show the defendant was in fact employed at that hotel at the material time; he was a waiter.

3.  The 1st offence - that is, the theft - occurred at about 11 am on 8 June 2007.  Some $975 cash was found to be missing from inside a desk drawer inside the banquet office on the 1st floor of the Harbour Grand Hotel.

4.  The defendant was suspected to have committed the offence.  He was a part-time waiter there.  The defendant was eventually arrested and cautioned for that offence on 6 August 2008, over a year later, and he admitted the offence.  He said he had gone past the banquet office in the early hours of the morning of 8 June, saw a gap at the door, entered the room and taken the money, the $975 in cash.

5.  He has also pleaded guilty to the 2nd offence of burglary, which occurred on the same day on 8 June 2007 in the evening of that day, and that involves money being taken from inside what is known as the Bride’s Room on the 1st floor of the same hotel.  What was happening was that a wedding banquet was taking place, and the 1st prosecution witness had left her wallet with $12,000 cash and a mobile phone valued at $4,000 inside that Bride’s Room.  She said the door was locked and the key was kept by her sister.  When she returned to the room at about 11.15 that evening, both the cash and the mobile phone had gone.

6.  The defendant admitted on 6 August 2008 that he had seen the Bride’s Room was unlocked, and he had entered and taken away the cash inside the wallet and the mobile phone, later selling the phone in Shenzhen and spending the money, and travel records confirm the defendant’s presence in Hong Kong at the material time.

7.  It can be seen the offences were committed some years ago.  The defendant was apparently released on police bail in 2008 and did not attend in accordance with that bail, and has effectively been in Hong Kong since then, but he was only arrested, I think, last year.

8.  The antecedents show the defendant is aged 53, had worked as a delivery worker and a waiter.  It says insofar as the date of arrest that he was arrested on 6 August 2008.  It says:  “Jumped bail, was rearrested on 9 February 2018.” 

9.  He has a number of criminal convictions, mainly for dishonesty.  As early as 1991 he committed a robbery.  In 1998, for four offences of burglary, he received a sentence of 2 years and 2 months’ imprisonment.  Since then he has been convicted of theft in 2002 and sentenced to imprisonment; and finally, in 2018, February of this year, further sentences for four offences of theft, sentenced to 2 months’ imprisonment on each of those, with 1 month of each consecutive.  So the defendant has recently been in prison, and since the conclusion of that imprisonment has been detained for these matters.

10.  As far as the mitigation is concerned, the defendant says he is remorseful, and was co‑operative when arrested.  He said that he committed the offences because he was short of money, and at the time his mother was suffering from cancer, and died in the period after the defendant was arrested.  He proffered no real reason for why he did not deal with this matter before 2018.  Clearly, the defendant cannot benefit from the fact the offences are somewhat stale, because it is by his own actions that the offences were not dealt with at a much earlier time.

11.  Dealing with the sentencing, both of these offences have elements certainly of breach of trust in them.  The defendant was an employee of the hotel, and in effect, the 1st offence involves a theft from his employer of cash kept in a desk drawer in the banquet office of the hotel; and certainly the 2nd offence also involves an element of breach of trust.  It was only as the result of his employment in the hotel that he would have had access to the inside of the hotel and enabled himself to steal the money from the Bride’s Room.

12.  Dealing with the 1st offence, the amount of money is not large; it is less than $1,000.  Taking into account the defendant’s position as an employee and the walk‑in nature of the theft, I take a starting point of 6 months’ imprisonment, and reduce that to 4 months’ imprisonment for the defendant’s plea of guilty.

13.  On the 2nd charge, this is charged as burglary. It is a burglary in a hotel, which counts as a domestic premises burglary.  The normal starting point for a person of clear record convicted after trial for the offence of burglary is 3 years’ imprisonment.

14.  In mitigation, the defence has asked me to depart from that normal tariff.  They say it is in the nature of what would be described as a walk‑in burglary, and the defendant would have had permission to be in the hotel, they say, as a waiter.

15.  Balanced against that submission is, of course, the fact that the defendant is not a stranger to offences of burglary.  He committed a burglary in 1998, and that can be an aggravating factor in sentencing.  However, that now is some 20 years ago, and in this case it may well be that it should be balanced against the other factors.  The second factor is the nature of the burglary.  The defendant says it was a walk‑in burglary in his admission.  He said the door was open.  The only problem with that is that the witness, as agreed in the Admitted Facts, says the door was locked, so it may well be that the defendant had the ability to enter the room, which would have resulted out of his employment there.

16.  As I said, the offence also involves an element of breach of trust.

17.  Balancing all the factors together, I consider that I should in this case adopt the normal starting point for domestic premises burglary, which is a starting point of 3 years’ imprisonment, which I will reduce to 2 years’ imprisonment for the defendant’s plea of guilty.

18.  I am asked to consider now the overall totality, because normally these sentences could be served entirely consecutively, but they were committed, it would appear, on the same date, but at separate times.

19.  What I shall order is that 2 months of the sentence of imprisonment on the 1st charge run consecutively to the 2nd charge and the balance concurrently.

20.  That leaves a final sentence of 2 years and 2 months’ imprisonment for these two offences.