HKSAR v. CHEUNG WAI TSUN (ALSO KNOWN AS CHEUNG WAI CHUN)

DCCC 582/2020

[2020] HKDC 1082

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 582 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to five charges of burglary, contrary to section 11 of the Theft Ordinance[1].

2.  Full particulars of the offences are set out in the amended summary of facts admitted by the defendant today. 

3.  In summary the defendant was arrested on 19 April 2020 for the five burglaries committed on 11 April 2019, 25 April 2019, 16 December 2019, 9 March 2020 and 7 April 2020.  The items stolen in the burglaries were mobile phones and a notebook computer. 

Charge 1

4.  On 11 April 2019 Ms Tong was a patient at Bed 25 of Ward E4, Pamela Youde Nethersole Eastern Hospital.  Ms Tong placed her mobile phone (cost around $3,000) on the dining table on her bed[2]. At around 1930 hours the defendant claiming to be a preacher told Ms Tong that he would pray for her.  At the same time the defendant used a newspaper to cover the mobile phone on the dining table.  Shortly after the defendant left Ms Tong realised her phone was missing.

5.  Under caution the defendant admitted stealing the mobile phone when he went to the hospital pretending to visit patients saying that he was from the church and offering a bag of fruit.  The defendant said he sold the mobile phone for $350.

Charge 2

6.  At around 1100 hours on 25 April 2019 Ms Cheng was working at the Doris Chui School of Ballet in Chai Wan.  Ms Cheng left the company mobile phone (cost around $600) on the reception desk.  While Ms Cheng was working in another room the mobile phone was stolen.  CCTV footage captured the defendant at around 1113 hours on 25 April 2019 entering the premises and stealing the mobile phone.

7.  Under caution the defendant said he saw the door of the premises and the mobile phone unattended.   The defendant said he sold the mobile phone for $250.

Charge 3

8.  In December 2019 Ms Chuang was working in the Chong Gene Hang College in Chai Wan. At around 1430 hours on 13 December 2019 when Ms Chuang finished work she left a notebook computer (cost around $6,000) on her desk in the 1st Floor staffroom. 

9.  When Ms Chuang returned to work on 16 December 2019 she discovered the notebook computer was missing from her desk.  CCTV footage captured the defendant at around 0750 and 0754 hours on 16 December 2019 entering the 1st Floor staffroom.

10.  Under caution the defendant admitted entering the gate of the school which was open, entering the staffroom and stealing the notebook computer which he sold for $550. 

Charge 4

11.  In March 2020 Ms Huang was working in the Hai Yi Putonghua Education Centre in North Point.  At around 1000 hours on 10 March 2020 Ms Huang realised that her mobile phone (cost around $1,500) was missing from the reception desk.  CCTV footage captured the defendant at around 1635 hours on 9 March 2020 entering the premises and stealing the mobile phone.

12.  Under caution the defendant admitted stealing the mobile phone when he passed by and saw the mobile phone was left unattended and that he sold the mobile phone for $300. 

Charge 5

13.  In April 2020 Ms Li was working at the Dr Augustine Tsang Dental Centre in Sai Wan Ho.  At around 1430 hours on 7 April 2020 the defendant entered the centre and said he wanted to register his wife to see a doctor.  Ms Li went into the consultation room to make the necessary arrangements leaving her mobile phone (cost around $2,000) on the reception counter.  When Ms Li returned to the reception counter the defendant had left and her mobile phone was missing.  CCTV footage captured the defendant stealing the mobile phone.

14.  Under caution the defendant admitted stealing the mobile phone which he sold for $150-200.

Mitigation

15.  In passing sentence, I have carefully considered the oral and written submissions of Ms Lau including that the defendant, who is 61, is divorced, lives alone and relies on social allowances of $2,000 odd per month[3]. 

Starting point

16.  The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months’ imprisonment.    

17.  Ms Lau submits the defendant is an opportunistic burglar and asks the court to take into account that there was no breaking of any lock or gate; no force was used; none of the victims were threatened, injured or intimidated and that there was no evidence of meticulous planning[4].  

18.  Charge 1 was clearly planned the defendant pretending to be the staff of the church when stealing property from a hospital patient.  I note the last time the defendant appeared in the District Court for burglary he also stole property from hospital patients[5].

19.  Charge 3 involved the defendant entering a public school and going to the 1st Floor staffroom where he stole a notebook computer.

20.  Charge 5 involved the defendant deceiving the receptionist into registering his wife to see the dentist, the defendant having been divorced in 2007[6].  When the receptionist went into the consultation room the defendant stole a mobile phone and immediately left. 

21.  In all the burglaries the defendant did not simply pass by an open door or vacant premises and steal food or items of little value[7].  Although the defendant did not break into any premises he was clearly looking for valuable property to steal for resale, namely mobile phones and a notebook computer, which no doubt contained a lot of personal information the loss of which would cause great inconvenience to the owners. 

22.  I am satisfied the proper starting point after trial on each charge is 2 years and 6 months’ imprisonment. 

Persistent offender

23.  The defendant has appeared in court on 34 occasions amassing a total of 99 convictions, the vast majority of which are for offences of dishonesty, with 21 for burglary, the last burglary being in 2010. 

24.  By reason of the defendant’s persistent offending I am satisfied the starting point on each charge is to be enhanced by 3 months to 2 years and 9 months’ imprisonment.  

Commission of offences on bail

25.  The defendant is currently serving a total sentence of 14 months’ imprisonment for two offences of theft imposed on 26 May 2020 (ESCC 113/2020) and 17 July 2020 (STCC 2150/2020)[8].

26.  I have had the opportunity of reading the case papers in both cases[9].  The case papers reveal that the two offences were committed in March 2019 and July 2019.  The offence in March 2019 was committed prior to the first burglary and the offence in July 2019 was after the defendant had committed the first two burglaries and before the third burglary.  The defendant was arrested for the two theft offences on 14 December 2019.

27.  The defendant was released on police bail on 16 December 2019[10].  The very same day after being given police bail the defendant committed the third burglary.

28.  The defendant first appeared in court in ESCC 113/2020 on 14 January 2020 when he was given court bail.  The defendant committed the fourth burglary on 9 March 2020 and the fifth burglary on 7 April 2020 while he was on court bail in ESCC 113/2020 and police bail in STCC 2150/2020[11].

29.  Commission of offences on bail is an aggravating feature of sentence.   I enhance the starting points on charges 3, 4 and 5 by a further 3 months to 3 years’ imprisonment.

30.  Giving the defendant full credit for his pleas of guilty reduces the sentence on charges 1 and 2 to 1 year and 10 months’ imprisonment and on charges 3, 4 and 5 to 2 years’ imprisonment. 

Totality

31.  Where offences are committed in different premises against different victims on different dates, consecutive sentences should be imposed, subject to the totality principle[12].

32.  Taking into account all the circumstances of the five burglaries including that the burglaries were committed in 2019 and 2020 and the total value of the stolen property, I am satisfied a total sentence of 3 years and 2 months’ imprisonment properly reflects the defendant’s criminality on the five charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[13].  

Sentence

33.  The defendant is convicted and sentenced as follows:

Charge 3 – 2 years’ imprisonment;

Charge 4 – 2 years’ imprisonment with 4 months consecutive and 20 months concurrent to charge 3;

Charge 5 – 2 years’ imprisonment with 4 months consecutive and 20 months concurrent to charges 3 & 4;

Charge 1 – 1 year and 10 months’ imprisonment with 3 months consecutive and 19 months concurrent to charges 3, 4 & 5; and

Charge 2 – 1 year and 10 months’ imprisonment with 3 months consecutive and 19 months concurrent to charges 1, 3, 4 & 5.

34.  The total sentence to be served by the defendant on the five charges is 3 years and 2 months’ imprisonment. 

35.  Whilst I am of the view the sentences in the Magistracy appear to be on the low side, if I had sentenced the defendant for the two theft charges at the same time as the five burglaries, I would have imposed a total sentence of 4 years’ imprisonment.  To give effect to this I order 34 months of the sentence imposed today to run consecutive to the sentence the defendant is now serving and 4 months concurrent.