HKSAR v. WONG SIU PUN

DCCC771/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 771 OF 2012

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Reasons for Sentence

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1.  The defendant pleads guilty to five counts of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap. 210.

Charge 1

2.  Yin Kee Incense Stall, (“Shop 1”), is located at Shop S27, 1st Floor, Tai Shing Street Market, 121 Choi Hung Road, Wong Tai Sin, Kowloon, “(the market)”.

3.  On 9 July 2012, PW1, the owner of Shop 1, left the shop at about 6 pm.  Before she left, she pulled down the roller shutter but did not lock it.  When she returned to the shop at about 7 am on 10 July 2012, she found the roller shutter opened and there were signs of ransacking.

4.  Upon checking, PW1 discovered that cash in the sum of 10,000 Renminbi and HK$1,240 were missing.  The case was reported to the police.

Charge 2

5.  PW2 is the owner of Tsui Po Lau, (“Shop 2”), which is located at Shop S29-31, 1st Floor of the market.  When PW2 left the shop at about 3 pm on 9 July 2012, she pulled down the roller shutter but did not lock it.  When she returned at about 7 am the next day, she found the roller shutter opened with signs of ransacking.

6.  Upon checking, she discovered that cash in the sum of $500 and a pair of ornaments were missing.  The case was reported to the police.

Charge 3

7.  PW3 is the manager of the Lucky Dragon Restaurant which is located at Choi Wan Complex, Clear Water Bay Road, (“the restaurant”).  On 14 July 2012, PW3 was informed that the restaurant had been burgled.

8.  Upon checking, four cabinets were found to have been prised open and there were signs of ransacking.  The tipping box and a wallet placed at the cashier counter were missing.  The case was reported to the police.

9.  CCTV footage showed that somebody had entered the restaurant via the rear entrance at about 0032 hours and stole things from the cashier counter before leaving at 0043 hours.  It was later confirmed that a box of American ginseng (“Exhibit 1”) and an electronic dictionary (“Exhibit 2”) were also missing.

Charge 4

10.  PW4 is the owner of Kong Kee Fish Stall (“Shop 3”) located at Shop F2, Ground Floor of the market.

11.  At about 7.30 pm on 16 July 2012, PW4 closed the shop without pulling down the roller shutter.  Later, he confirmed to the police that 7 packets of cigarettes, one bottle of perfume, one piece of jade and one gold coloured bracelet were missing.

Charge 5

12.  At about 11 pm on 16 July 2012, PW6 noticed through the CCTV in the security office that the defendant was wandering around in the market.  PW6 felt suspicious and went on patrol to locate the defendant.

13.  At about 11 pm, the defendant was caught red-handed when he was stealing in Shun Fung Meat Stall at M5, Ground Floor of the market (“Shop 4”).  The case was reported to the police. 

14.  It was later revealed that PW5, the owner of Shop 4, had already closed the stall before 7.30 pm and had left the roller shutter half-open.  The defendant entered the shop and stole cash in the sum of $5,586.40 which was subsequently recovered from him upon a body search at the scene by PW11.

15.  The defendant was arrested by PW11 at 11.10 pm at Shop 4.  Under caution, the defendant admitted he had stolen money from Shop 4 and cigarettes from Shop 3.  The defendant was then taken to Shop 3 where he admitted that he had stolen several packets of cigarettes and a piece of jade.

16.  The defendant was arrested again at 11.13 pm at Shop 3.  Under caution, the defendant admitted that he had stolen out of greed.  The defendant’s statement was post-recorded in PW11’s notebook and acknowledged by the defendant by signing on it.

17.  PW11 noticed that the characteristics of the defendant were similar to that of a wanted person, PW11 then cautioned the defendant and made further enquiries with him about other burglaries which happened on 9 and 10 July 2012 in the market, Charges 1 and 2.

18.  The defendant admitted that he had committed those burglaries.  PW11 then arrested the defendant for Charge 1 and cautioned him.  Under caution, the defendant admitted he had stolen some Hong Kong dollars and Renminbi from Shop 1.  The defendant’s statement was post-recorded in PW11’s notebook which was then signed by the defendant. 

19.  PW11 then arrested the defendant for Charge 2 and cautioned him.  Under caution, the defendant said he was greedy because he had no money.  The defendant’s statement was again post-recorded in PW11’s notebook which was then signed by the defendant in acknowledgement.

20.  A video recorded interview was conducted in respect of Charges 1 and 2 on 17 July 2012.  The defendant admitted that he went to the market at about 8 pm and had entered Shops 1 and 2 to steal.

21.  A video recorded interview was conducted in respect of Charge 3 on 17 July 2012.  The defendant admitted that he had entered the restaurant via the rear staircase and walked to the cashier counter.  He then took away the tipping box, a wallet and an electronic dictionary and a box of American ginseng.  He took those items home but later disposed of the wallet and the tipping box.  He had spent the several hundred dollars from the tipping box on food.  Exhibits 1 and 2 were seized from the defendant’s home at about 4.50 pm on the same day.

22.  Another video recorded interview was conducted in respect of Charges 4 and 5 on the same day.  The defendant admitted that he had stolen from Shop 3 out of greed.  He further admitted that he had stolen $5,586.40 from a drawer of a cabinet in respect of Charge 5. 

23.  The shops and restaurants which are the subject of the five charges are non-domestic premises.  The defendant had entered those premises as a trespasser. 

The defendant’s background and mitigation

24.  The defendant is 33 years old, single.  He has been unemployed since 2010 and lives with his mother and sister.

25.  He has 19 previous convictions, 9 of which were related to dishonesty.  His last conviction was for burglary.  He was sentenced to 10 months’ imprisonment on 17 October 2011.

26.  Counsel relied on the case of HKSAR v Cheng Wai Kai CACC338/2007.  In that case the accused pleaded guilty to four counts of burglary and one count of attempted burglary.

27.  Counsel submitted that the facts of that case were more serious than the present case.  Although the accused in that case had no previous convictions for burglary, he was described by the court as a professional burglar.  The accused had broken into the victim premises whereas the defendant in the present case only entered unlocked premises.  The amount stolen was far greater than in the present case.  Like the defendant, the accused in that case was caught red-handed and his only mitigation was his guilty plea.

28.  In those circumstances, counsel urged the court to adopt an overall starting point of no greater than 5 years’ imprisonment.

Sentence

29.  In passing sentence, I have taken into consideration everything said on the defendant’s behalf.

30.  I agree that some of the facts in Cheng Wai Kai were more serious than that in the present case, for example, breaking into premises and the amount stolen.  However, the defendant in the present case has a far greater number of convictions related to dishonesty, one of which was for burglary.  He committed a whole series of offences within a matter of days, only months after his release from prison.  Those are all aggravating factors.

31.  For burglary of non-domestic premises and in the absence of any further mitigating or aggravating factors, the appropriate starting point is 2½ years’ imprisonment.

32.  In the light of all the circumstances of the present case, I adopt a starting point of 2½ years’ imprisonment for each charge.  I give the defendant full credit for his guilty pleas, the sentence for each charge is reduced to 20 months.

33.  I consider that an overall starting point of 60 months to be appropriate to reflect the defendant’s criminality.  Charges 1 and 2 happened on the same occasion, I order that the sentences for those charges to be served concurrently.

34.  Charge 3 was in a different location and was committed on a different date; that offence was wholly independent from the charges.  I order that 10 months of that sentence be served consecutively to Charges 1 and 2.

35.  Charges 4 and 5 were also part of the same incident; I order that the sentences for those charges to be served concurrently, but 10 months of the sentences for Charges 4 and 5 are to be served consecutively to Charges 1 to 3.  That makes a total sentence of 40 months’ imprisonment.