HKSAR v. WAN WAI FUNG

DCCC 281/2020

[2021] HKDC 216

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 281 OF 2020

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a single charge of burglary. The burglary occurred on 12 January 2020 at the MoMoRestaurant in Maritime Bay in Tseung Kwan O.

2.  The premises were locked on 11 January 2020. When a staff returned on 12 January 2020, it was found that the glass door of the premises had been broken.  A cash register with some $20 of coins that were kept in there was missing and there was the monitor connected to the cash register had been flipped over on the table.  There was a safe and other money in the premises but they remained intact; they were not taken. 

3.  A review of the CCTV footage saw that at about 0355 hours on 12 January, the defendant entered the premises.  At the time, he was wearing a mask and a hoodie, long trousers and carrying a shoulder bag.

4.  The defendant was arrested on 17 January 2020. At the time, he said his mother was sick and he needed money for medical treatment.  He did not have a stable job.  He picked up a stone on the street, used it to break the glass door of the offence location, then went in and took away the cash register.  On returning to his home, he prised open the cash register, found that a few dollars of coins were in there.  He later discarded both the cash register and the money into a rubbish bin.

5.  The defendant expanded upon that admission in a video-recorded interview taken later.  He said he had been unemployed since September 2019. He reiterated his account of how the burglary took place.  The defendant committed the burglary alone.  Taking the opportunity, he entered the premises by breaking the glass door.

6.  The defendant is aged 51 and is married.  His antecedents show that he has three previous convictions.  They were all committed between 2001 and 2014.  Of some relevance perhaps is the offence of theft committed in 2013 where he was sentenced to 2 months’ imprisonment.

7.  As far as the defendant’s mitigation is concerned, in his mitigation, it is clear that he had been employed and then lost his work in September 2019, and he had been relying on his savings since then.  He has hepatic hemangioma and gallbladder polyps.  He is scheduled to have surgery this month sometime.  He has a 12-year-old daughter and a 10-year-old son living and studying in mainland China, taken care of by his wife.  His mother recently passed away.  He has recently attended her funeral on 4 January this year.  Naturally, the defendant was remanded during the worst part of his late mother’s illness.  She had been suffering from Parkinson’s disease and fever.

8.  The defendant’s mitigation also is on the basis he had shouldered a heavy financial burden himself supporting his family and required expenses for the elderly home for his mother.  And by being laid off, he was unable to meet those expenses, and he attributes that to be one of the reasons why he committed the burglary.

9.  He admitted that he picked up a stone to break the rear door of the premises and entered the restaurant to steal the cash register. As it turned out, the amount of money in fact stolen was very small, just a few coins.

10.  In terms of determining the starting point for sentence, I take into account the fact the defendant has pleaded guilty to the charge.  He will be entitled to a one-third discount from any starting point for sentence for that plea.  His previous conviction is over seven years old and it is not an aggravating factor in relation to this offence.  The defendant provided a full and complete confession after his arrest and during the video-recorded interview.  No particular sophisticated approach was entailed.  There were no tools specific to burglary adopted to commit this burglary.  The defendant did this alone.  The value of the property is very low, and the offence had an element of premeditation as can be seen from the simple way in which the offence was committed.

11.  It is common ground that the starting point for sentence for a person of clear record who pleads not guilty to a non-domestic burglary is 2½ years’ imprisonment or 30 months’ imprisonment, and that would be the normal starting point to be adopted.  I take into account that there is an element of spontaneity in this offence, and the defendant has not profited from the commission of the crime, and the value of the stolen property was very low. 

12.  I will take a starting point at 27 months’ imprisonment for this offence, reduce that to 18 months’ imprisonment for the defendant’s plea of guilty.