HKSAR v. TO CHUN HEI

DCCC 104/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 104 OF 2017

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Reasons for Sentence

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1.   The defendant has pleaded guilty to one count of burglary.

2.   The facts of this case are straightforward.

3.   On 5 December 2016 the defendant entered as a trespasser the office of a construction company at a construction site in Kowloon City, Kowloon.  On that same evening PW1, an employee of the victim company, had locked up the temporary office, which is in the shape of a container.  There was cash in this office.  There was a total of $1,800 that he, the victim, had left in a drawer, but the drawer was not locked.  What was locked was the door of the container and a padlock was used to lock it.

4.   The next morning, PW1 returned to work and discovered that the padlock as well as $1,800 in cash was missing.  He looked at CCTV footage from nearby cameras.  He saw a man who was later identified as the defendant, an ex-employee, on the CCTV footage.  The defendant used to work for the victim company as a delivery attendant from June 2015 to October 2016, after which his employment was terminated.

5.   He is first seen on CCTV camera at 11.08 pm on 5 December and last seen at 12.07 am the following morning.  A night-shift worker of a neighbouring company saw and spoke to the defendant at about that time.

6.   Defendant was arrested on 8 December and admitted the offence under caution.  He said that he had no money at the time and that is the reason for committing this offence.

7.   In a video recorded interview subsequently recorded, he explained that he used to work for that company and knew that there was some cash in that temporary office.  He went there with the purpose of trying to break into that temporary office.  He did not take tools with him but he borrowed a bolt-cutter from a neighbouring site.  He cut the padlock and entered the office.  He did take money from the drawer and after he left the premises he threw away that padlock on his way home.

8.   The defendant’s best mitigation is his plea of guilty. 

9.   He is a 29-year-old man with a poor criminal record.  In fact, in nine court appearances, he has 20 criminal convictions.  They begin when he was just 18 years old.  He has spent much time in and out of prison.  The majority of his convictions relate to offences of dishonesty. 

10.   Although he has intact family in Hong Kong, he lives alone.  He is married but his wife lives in Mainland China.  I have been told that he was educated up to Form 3 level and, as for employment, he certainly was a delivery worker before and at the time of his arrest, including having worked for the victim company.

11.   Defence counsel, Mr Li, has said all he can say on the defendant’s behalf in mitigation. 

12.   Burglary of a non-domestic premises such as this normally attracts a starting point of 2 years and 6 months, where there are no aggravating or mitigating factors. 

13.   Having considered the facts and the mitigation I have heard, I see no such factor of either persuasion.  I, for this offence, will take a 2 year and 6 months’ starting point.

14.   The defendant has pleaded guilty and is entitled to a discount of one-third from that starting point.

15.   After that discount of 10 months is applied, defendant is sentenced to 1 year and 8 months for this offence.

COURT: Do you understand?

DEFENDANT: Understood.

Court adjourns - 12.22 pm

Court resumes - 2.18 pm

Defendant present. Appearances as before.

(Discussion re current term of imprisonment)

16.   Yes, defendant, please stand up.

17.   Before lunch, I was unaware that you are presently serving a 6-month term of imprisonment and you were sentenced to that 6 months on April 12 last month.

18.   I have considered the nature of that conviction.  It is a conviction for theft, which can be said to be similar to the nature of today’s conviction:  it is an offence of dishonesty.

19.   I have also considered the totality principle.

20.   I will order that 3 months of that Tuen Mun case be served concurrently to today’s sentence and 3 months consecutively.

COURT: Do you understand that?

DEFENDANT: Understood.