HKSAR v. CHAN CHI HUNG

DCCC 543/2020

[2021] HKDC 40

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 543 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant appeared before me and pleaded guilty to a single charge of “Burglary”, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210.

THE FACTS

2.  The offence location is a fish stall situated at G/F Ting Shing Shopping Centre (the “Shop”)  in Tin Shui Wai, New Territories, Hong Kong (the “Market”).  The Shop was unsecured.

3.  The main entrance of the Market was open to public access at all times.  At the material time, a security guard was stationing at the main entrance.  CCTV were installed in the Market.

The burglary incident

4.  On 22 March 2020 at about 1945 hours, the Shop owner kept a cash of HK$85,000 in a safe which was placed inside a steel cabinet in the Shop.  

5.  On 23 March 2020 at around 0300 hours, the security guard was patrolling the Market when he saw three men, later confirmed to be Tang Wai Chung (“Tang”), Lee Shing (“Lee”)  and the defendant moving a steel cabinet with a trolley.  The guard asked them what they were doing.  One of the men replied that they were instructed to move the old steel cabinet away as the boss had bought a new one.  The security guard therefore let them carry the steel cabinet away.

6.  CCTV of the Market captured Tang, Lee, the defendant and another unknown male (“WP”), all wearing surgical masks, taking the steel cabinet away from the Shop at around 0402 hours.  

7.  On 23 March 2020 at around 0645 hours, the Shop owner returned to the Shop and found the steel cabinet, the safe and the cash $85,000 missing.  The police were alerted.

8.  The Shop owner revealed that the defendant was a former staff of the Shop.

9.  On 28 May 2020 at 1845 hours, the defendant was arrested for “Burglary” at the staircase outside his residence in Tuen Mun.  He admitted stealing in the Market with Tang and Lee under the instruction of “Ar Bin” (“WP”)  (“係呀扁叫我同呀成，肥宗一齊去天盛街市個到偷嘢架。”).

10.  A video-recorded interview was subsequently conducted with the defendant, in which he admitted, inter alia, that:-

(a)  he admitted the offence and stated that he had entered the Market with Tang and Lee and WP to steal the steel cabinet;

(b)  at around 0200 hours on 23 March 2020, the defendant went to the Market with WP and they took some coins from the steel cabinet at the Shop;

(c)  WP later asked the defendant, Tang and Lee to take the safe away from the steel cabinet. At 0400 hours on the same day, all of them returned to the Shop and stole the steel cabinet. They loaded it on a cart from Tang’s residence. The safe originally stored inside the steel cabinet was prized with a stylus;

(d)  the safe contained cash of around HK$80,000, which was divided among the four - HK$20,000 to Tang, HK$10,000 to Lee, and HK$30,000 each to the defendant and WP;

(e)  The defendant confirmed that he was the former staff of the Shop in late 2019 and he knew that money was stored in the safe;

(f)  He positively identified the four male culprits appearing on CCTV footage in the Market were Tang, Lee, WP and himself;

(g)  He claimed that the clothing he wore when committing the offence had been thrown away.

MITIGATION

11.  The defendant was born in Hong Kong.  He is 52 years old.  He resided with his father, mother and son (age 5).  The son has now gone to live with his mother.  The defendant worked in a warehouse earning around HK$15,000 per month.  He has criminal records in Hong Kong but most of the offences are not similar.  In relation to offences involving dishonesty there are 3 previous convictions, the last dishonesty offence was in 2002. He also has 4 convictions relating to dangerous drugs.  The last offence was in 2013. The defence submitted that since the birth of his son in 2016, the defendant has not committed any offences, whether dishonesty offences or otherwise.

12.  The defendant expressed worries through his lawyer that the impact on his son caused by his absence whilst in prison.  He wishes to re-enter the community as soon as possible to be a law-abiding citizen, which would allow him to be there to support his son financially and emotionally.

SENTENCING CONSIDERATIONS

13.  In R v Wong Man [1993] 1 HKC 80, the Court of Appeal suggests 2½ years as the starting point for non-domestic premises for a first offender of full age.

14.  In HKSAR v Chen Ting Fang (陳鼎芳)  CACC 221/2007, the defendant burgled a flat with keys to a flat on which he did renovation work for its owner earlier on.  The trial judge ordered a 3-month increase based on breach of trust.  The Court of Appeal found that the judge was entitled to regard this breach of trust as an aggravating feature in the commission of the offence and so affirmed the 3-month enhancement in sentence.

15.  In HKSAR v Sim Ka Wing CACC 450/2000, there the applicant was a former employee of the restaurant.  While still in the employment, the applicant brought along gears and broke into the restaurant to steal.  The Court of Appeal found that although there was a breach of trust in that the applicant had used his knowledge of the restaurant to assist him in the burglary.  It only warranted a modest increase in the starting point.  It was found that the degree of planning together with the breach of trust warranted a 6 months’ increase in the starting point.

16.  The defendant was a former employee of the Shop but no longer worked there at the time of the burglary.  He ceased his employment in around July 2019, around 8 months prior to the offence.  The defence submitted that this is therefore not a “breach of trust” case.

17.  I disagree.  The defendant was an employee of the Shop.  He admitted that he knew the Shop owner’s money was kept in the safe.  I find that the defendant had used his knowledge of the Shop he gained when he was working there. This is a clear breach of trust case. This factor alone justifies an increase in the starting point on the ground of breach of trust as in Sim Ka Wing.

18.  In my judgment, the breach of trust factor together that this was a group action.  I enhance the starting point by 6 months (3+3)  to 36 months.  

19.  I am informed that the defendant has given one non-prejudicial statement which had led to the arrest and prosecution of WP (later known to be the defendant in DCCC1043/2020). I defer the sentence until the defendant has had the opportunity to live up to his promise.

20.  WP pleaded guilty on 6 June 2022 to the burglary charge and was sentenced to 2 years’ imprisonment.

21.  In Z v HKSAR (2007)  10 HKCFAR 183, it is repeated that the Court of Appeal was well placed to consider the range of reductions of sentence for co-operation with the authorities.  It had applied a usual discount of 40% for a defendant who provided assistance to authorities without giving evidence; and where the defendant had given truthful and material evidence, the Court of Appeal had given a usual discount of 50%.

22.  I have considered Z v HKSAR. The policy of the courts to recognize useful assistance to the authority in mitigation sentence is based on the public interest.  A number of factors should be taken into account, as outlined in paragraph 13 of the judgement.

23.  The defendant is therefore entitled to 40% reduction for his guilty plea.  That will bring his sentence down to 21 months and 18 days.

24.  Undoubtedly, the defendant’s son will suffer, but this consequence is something which he should have considered before he embarked on committed the offence.