HKSAR v. CHAN WAI SANG

DCCC 1053/2024

[2025] HKDC 966

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1053 OF 2024

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REASONS FOR SENTENCE

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1.  The Defendant pleaded guilty to a charge of burglary, the stolen property was $100,000 from a ground floor shop running a business of currency exchange.

Summary of facts

2.  At about 4 pm on 9 April 2024, the shop owner found the cash of about $100,000 had gone missing from the cashier drawer.

3.  The CCTV footage showed that on the same day at about 3:40p.m., the Defendant who was hovering outside the shop while looking around, reaching his hand inside the counter of the shop to take the cash from the cashier drawer.

4.  On 14 May 2024, the Defendant was arrested at Lo Wu Departure Control Point.

Criminal record

5.  Since 1977 to 2021, the Defendant has a long list of 48 criminal records, among them there were 26 counts of burglary offences.  His last 2 convictions in the list were also burglary:-

(a)  2018: 2 counts of burglary - sentence to 30 months’ imprisonment in DCCC 289/2018;

(b)  2021: 4 counts of burglary - sentence to a total of 36 months’ imprisonment in DCCC 992/2020. He was discharged in July 2022.

Mitigation

6.  The Defendant is 61 years old.  He is re-married with a daughter aged 23.  He lives in a public housing unit in Tin Shui Wai.  He was a cleaner earning a monthly salary of $15,000.

7.  The Defendant committed the present offence to repay his debts, which he had incurred for his wedding in early 2024.

Sentence

8.  The starting point for a single charge of non-domestic burglary by a first time offence is 30 months’ imprisonment.

9.  In the present case, the defence accepted that there are aggravating factors as stated in the case of HKSAR v Cheng Wai Kai CACC  338/2007:-

(a)  The Defendant has been convicted of 27 counts of burglary offences, not to mention other offences.

(b)  He committed the present offence 21 months after his release from prison.

10.  There is no doubt that he is a persistent offender.  

11.  The principles relating to sentencing of a persistent offender were set out in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830.  That decision makes it clear that for a persistent offender there is a need to provide the Defendant with additional deterrence and to protect the society from him.  In the judgement of Chan Pui Chi , the Court also said that:-

“re-offending in the same or a similar way may aggravate the offence, at least so far as sentence is concerned.”

12.  In the case of HKSAR v Lui Yuen Shun CACC 160/2016, the applicant was 41 years old, had 33 conviction records with 23 offenses related to dishonesty, 7 of them were burglary offenses.  The starting point for the 2 charges was 36 months (domestic burglary)  and the Court enhanced the starting point by 12 months in view of his criminal records, arriving at a total of 48 months.

13.  His appeal against sentence was dismissed.

14.  The defence submitted that it was an opportunistic burglary and asked the starting point to be lowered citing the decision in HKSAR v Cheung To Ming [2006] 2 HKLRD 259 which concerned 2 stolen packets of instant noodles in the Mai Po Marshes Wildlife Education and Nature Reserve Centre.  On appeal, the Court of Appeal agreed that to lower the starting point was appropriate for an opportunistic burglar who was akin to a sneak thief, walked into open premises that was vacant and the stolen items were of small value.

15.  In the present case, it was a ground floor shop in a main street; CCTV showed that the shop front was busy.  It is a currency exchange and grocery shop.  Clearly, the cash registry must contain some cash.  As such, the Defendant was in fact targeted at a shop that involved substantial properties.  The stolen property was not of a small sum, it was $100,000 cash, which was not recovered.

16.  It is true that the owner forgot to close the drawer of the cashier, but the Defendant is obviously a professional burglar.

17.  As such, the case of HKSAR v Lui Yuen Shun applies and the starting point of 30 months should be enhanced by 12 months as previous sentences served no deterrent effect upon the Defendant.  The sentence arrives at 42 months (30 + 12), given the 1/3 discount, it comes down to 28 months.

18.  The Defendant is ordered to serve a period of 28 months’ imprisonment.

Compensation

19.  The Prosecution applied for a compensation of $100,000 and subsequently reduced to $70,000.  It is the duty of this Court to find out the Defendant’s financial ability to fulfill a compensation order before making one.[1]

20.  The defence informed me that the Defendant only has 300 odd dollars in the prisoner property.  He has no assets and his previous job was a low-income job earning about $15,000 per month.  In particular, given his history, to make such an order, it is likely to encourage him to re-offend again shortly after his release from prison in order to meet the payment.

21.  In such circumstances, I refuse the prosecution’s application.