HKSAR v. HUI SAI ON also known as CHAN WAI YIP

DCCC 494/2022

[2022] HKDC 948

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 494 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a charge of theft and a charge of burglary on his own plea and agreement to the Summary of Facts, and was so convicted.

Facts

Charge 1 - Theft

2.  At around 11:44 am on 4 October 2021, PW1 and his wife were delivering goods to a wine cellar from the trunk of his light goods vehicle bearing registration mark TX6926, which was parked outside No 17 Moreton Terrace, Causeway Bay.  At the material time, the trunk door of the vehicle was open, and both the near side and off side of the vehicle were left unattended. Shortly afterwards, PW1 returned to the driver’s seat and found that his mobile phone, which was placed in the front of the gear stick of the vehicle, was missing.

3.  CCTV installed at the wine cellar captured that at around 11:46:31 on 4 October 2021, the defendant waited near the wine cellar and observed PW1 and his wife.  While PW1 and his wife were moving the goods in front of the wine cellar, the defendant approached the driver’s seat of the vehicle and left at around 11:47:09.

Charge 2 - Burglary

4.  “SHUKI” is a boutique stall located at Shop 423B, 4^th Floor, Hysan Place, 500 Hennessy Road, Causeway Bay.  The stall was a three-walled structure with walls on both sides at the back and there was no door or lock at the entrance.  When the stall was closed, the staff would hang a canvas at the front.  At around 9:30 pm on 8 October 2021, after checking things were in order, staff of SHUKI closed the stall.

5.  At around 11:45 am on 10 October 2021, when PW2 (a staff of SHUKI)  returned to the stall and unfolded the canvas, she found signs of ransacking and informed its owner, PW3.  Upon checking, the following items were missing:-

(a)  a credit card payment terminal (worth HK$2,000);

(b)  an Alipay and Octopus card payment terminal (worth HK$2,000);

(c)  20 necklaces (worth a total of HK$5,000);

(d)  5 bracelets (worth a total of HK$1,000);

(e)  30 rings (worth a total of HK$6,000);

(f)  50 pairs of earrings (worth a total of HK$9,000);

(g)  10 wallets (worth a total of HK$2,000); and

(h)  10 bags (worth a total of HK$2,000).

6.  The missing properties were worth a total of HK$29,000.

7.  Upon further checking, a black “North Face” sling bag and a broken screwdriver were found inside the stall which did not belong to SHUKI.

8.  On 12 October 2021, the Visa manager payment terminal was found in a building nearby, the same belonged to SHUKI.

9.  On 18 October 2021, the defendant was arrested.  Under caution, he admitted that as he was in lack of money, he stole the mobile phone when he walked past the vehicle out of greed (Charge 1).  He also admitted under caution that he stole goods from the unmanned stall out of greed when he walked past (Charge 2).

10.  A house search was conducted at the defendant’s residence on 18 October 2021, 13 rings, 33 pairs of earrings, 6 necklaces, a brooch, a green leather wallet and a black leather wallet were seized.  PW3 confirmed that the properties belonged to SHUKI and were part of the missing properties.

11.  The defendant’s DNA was found on the black North Face sling bag which was seized from the stall. 

12.  At the material time,

(a)  the defendant stole a mobile phone belonging to PW1 from the vehicle; and

(b)  the defendant entered the stall as a trespasser and stole the missing properties.

Criminal Record

13.  The defendant had 19 previous records involving 38 convictions, 20 of which relating to dishonesty, 14 being theft and 4 being burglary convictions. He was last released from prison on 3 October 2020.

Mitigation

14.  The defendant is aged 48.  He had received education up to Form 2 level.  He is divorced.  He has 2 adult children from his former relationship with a girlfriend.  He used to work as a cleaner earning HK$9,000 per month. His parents are not dependent on him.  It was said by defence counsel that in the past the defendant used to contribute HK$1,000 to his parents and HK$1,000 to his children per month.

Charge 1 – Theft

15.  It was said by defence counsel that when the defendant went past the vehicle, he took the mobile phone out of momentary greed by putting his hand through the open windows of the driver’s seat.  It was said that the theft was committed in an opportunistic manner and there was no pre-meditation or planning.

Charge 2 – Burglary

16.  Defence counsel said, as agreed in the facts, that there was no door or lock at the entrance of SHUKI and there was just a canvas covering the stall when the stall was not attended.  It is in those circumstances that defence counsel said, again, out of momentary greed and mischief, the defendant took away the items in question when he walked past.

17.  Defence counsel admitted that the sling bag belonged to the defendant, but the broken screwdriver found at the scene were not the defendant’s property, and that the defendant had not used both of these items in the commission of the offence.  It was also said that there was no need to use any equipment in committing the offence.

18.  Defence counsel conceded that the normal sentencing starting point for non-domestic burglary is 2½ years’ imprisonment.  It was said that the defendant had all along been cooperative once he was approached by the police and he has indicated his guilty plea, therefore, saving the time and costs of the police and that of the court.

19.  He also submitted that the defendant is truly remorseful which is evident from his letter in mitigation, and the defendant promises to rehabilitate himself and not to recommit any offence in the future.

20.  Defence counsel further submitted that the degree of the breaking into the stall was very minimal and no equipment was required in the entry of the premises of SHUKI.  It was also submitted that there was no reported damage to the stall, and that it is appropriate for this court to treat the circumstances of the commission of the offence as a borderline opportunistic burglary.

21.  Defence counsel referred this court to the cases of HKSAR v Sim Ka Wing, CACC 450/2000, HKSAR v Cheung To Ming [2006] 2 HKLRD 259, and HKSAR v Lau Wesley (also known as Lau Chung-hing), DCCC 1094/2016.

22.  Defence counsel asked this court to pass a lenient sentence on the defendant and also to consider the totality principle.

Discussion

23.  In passing sentence this court has carefully considered all that was said on behalf of the defendant as well as the mitigation letter from the defendant.

Charge 1

24.  For this offence, upon conviction on indictment, the maximum sentence is 10 years’ imprisonment.  There is no sentencing guideline for this offence as the facts of each case as well as the background of each defendant varies. 

25.  This court accepts that this is an opportunistic theft and there was no planning ahead.  The value of stolen property is a mobile phone worth around HK$5,000. This court finds therefore a sentencing starting point of 9 months appropriate in the circumstances. 

26.  However, from the record, one can see that the defendant is a recidivist and a persistent offender of theft, for which the sentencing starting point is enhanced by 3 months to 12 months’ imprisonment.

27.  The only valid mitigating factor is the defendant’s guilty plea, of which he is entitled to the full one-third sentencing discount.  Accordingly, the defendant is sentenced to 8 months’ imprisonment for Charge 1.

Charge 2

28.  It is well established that the appropriate sentencing starting point for burglary of non-domestic premises in the absence of aggravating or strong mitigating factor is that of 2½ years’ imprisonment. (See R v Wong Man [1993] 1 HKC 80)

29.  This court accepts that in the present case the defendant had acted alone.  It is agreed that the stall was not under lock and key, but was only covered by a canvas.  Although there was a screwdriver found at the scene which does not belong to the stall, and a sling bag which belonged to the defendant was left at the scene, the stall reported no damage and there was no evidence that the screwdriver was actually used in the commission of the offence.  In fact, the defendant said that the same does not belong to him.

30.  There is no evidence of planning and the level of sophistication in the commission of this offence is low.  The value of property stolen on this occasion is HK$29,000. 

31.  The criminal record of the defendant, however, shows that the defendant is clearly a persistent offender as he has 14 previous convictions of theft and 4 counts of burglary in the past.  This is an aggravating feature.

32.  In the circumstances, this court finds it still appropriate to adopt a sentencing starting point of 2½ years’ imprisonment for the burglary of the stall.

33.  Again, the only valid mitigating factor is the defendant’s guilty plea, of which he is entitled to the full one-third sentencing discount. Accordingly, for Charge 2, the defendant is sentenced to 20 months’ imprisonment.

Overall sentence

34.  The commission of the first offence and the second offence are a few days apart and at different locations.  The commission of the second offence obviously adds to the culpability of the defendant. 

35.  Considering the totality principle, this court would order that 4 months of the sentence in Charge 1 is to run consecutive to the sentence in Charge 2. The rest, 4 months’ imprisonment in Charge 1, is to run concurrent to the sentence in Charge 2.

36.  The defendant is, therefore, sentenced to a total of 24 months’ imprisonment for the two charges.