HKSAR v. WAN SAI LEUNG

DCCC 514/2019

[2019] HKDC 1510

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 514 OF 2019

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of theft, contrary to section 9 of the Theft Ordinance[1]and one charge of burglary, contrary to section 11 of the Theft Ordinance.

2.  Full particulars of the offences are set out in the facts admitted by the defendant today. In summary in March this year the defendant stole CCTV cameras, CCTV servers and a splitter from a residential building in Tsuen Wan and in April this year burgled a restaurant in Tsuen Wan and stole cash, two CCTV cameras and a tablet computer.

Charge 1

3.  On or about 26 March 2019 the defendant stole two CCTV cameras from the roof top of Tak Yan House Stage 4 at Nos. 9-13 Chuen Lung Street in Tsuen Wan and one CCTV camera, two CCTV servers and one splitter form the third floor corridor. 

4.  The total value of the CCTV cameras, CCTV servers and the splitter is $7,600 and the installation cost is about $12,400. 

Charge 2

5.  On or about 8 April 2019 the defendant burgled “Fa’s Kitchen” located at Shop 4 on the ground floor of Cheong On Building, Nos. 186-200 Sai Lau Kok Road in Tsuen Wan.  The defendant stole about $1000 cash in coins, two CCTV cameras valued at $1,000 and one tablet computer also valued at $1,000.

Arrest

6.  CCTV footage showed that between 2332 hours on 25 March 2019 and 0537 hours on 26 March 2019, the day of the theft from the roof top and the third floor, the defendant was captured in the vicinity of Tak Yan Building.

7.  At 1435 hours on 12 April 2019 PC 5539 intercepted the defendant in Tsuen Wan.  Under caution the defendant admitted the two offences.

8.  In a video recorded interview, the defendant admitted, inter alia, that on 25 March 2019 after an argument with his wife he wandered around Tsuen Wan looking for something valuable; he went to the top floor of Tak Yan Building for a smoke and then dismantled the CCTV cameras on the roof top and a CCTV camera, two CCTV servers and a splitter from the third floor; and that he took the CCTV cameras, CCTV servers and the splitter to his residence temporarily intending to sell them for money.

9.  The defendant further admitted that in the early hours of 8 April 2019 he was wandering around when he saw the door of Fa’s Kitchen was unlocked; he opened the door and dismantled two CCTV cameras and stole the coins and tablet computer; and that he spent the cash for buying cigarettes and food, threw away the CCTV cameras and took the tablet computer to his residence.

10.  On a search of the defendant’s residence the police found the CCTV cameras and equipment stolen from Tak Yan Building and the tablet computer stolen from Fa’s Kitchen. 

Mitigation

11.  In passing sentence, I have carefully considered the oral and written submission of Mr Chan.

Starting point

12.  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.

13.  Although the theft at Tak Yan Building is similar to that of burglary I accept the submission of Mr Chan that a lower sentence than that for burglary is appropriate. 

Opportunistic

14.  Mr Chan submits the theft and burglary were both opportunistic crimes.

15.  I do not agree.  In respect of the theft the defendant told the police he walked around the Tsuen Wan area to find something valuable.  There was no need to go to a roof top to smoke.  Clearly the defendant was looking for valuable items to steal which he may be able to sell for money.

16.  I am satisfied the correct starting point for the theft of the CCTV cameras, the CCTV servers and the splitter is 1 year and 6 months’ imprisonment.

17.  Although the entrance of the restaurant was not locked the defendant did not enter and steal food or items of little value[2]. The defendant stole about $1000 in coins and a tablet computer valued at $1,000. Further, the defendant also dismantled two CCTV cameras which he threw away no doubt to destroy any evidence that he had burgled the restaurant. 

18.  I find no grounds to depart from the guideline starting point of 2 years and 6 months’ imprisonment. 

Persistent offending

19.  Although the defendant has twenty-two previous convictions for burglary dating as far back as 1992 the last conviction for burglary was in 2007.  Since that time the defendant has only appeared in court twice in 2009 and 2017 when he received short sentences of imprisonment for offences of dishonesty. 

20.  In the circumstances, the defendant having largely remained out of trouble in the last ten years, I do not enhance the starting points by reason of his persistent offending. 

21.  Giving the defendant full credit for his pleas of guilty reduces the sentence on charge 1 to 12 months’ imprisonment and on charge 2 to 1 year and 8 months’ imprisonment.

Totality

22.  Where offences are committed in different premises against different victims on different dates consecutive sentences should be imposed. 

23.  Mr Chan refers the court to HKSAR v Hui Chi Tong[3]where the Court of Appeal held the appropriate total sentence for two burglaries was 30 months’ imprisonment[4]and HKSAR v Wong Chi Wing[5] where the Court of Appeal held the appropriate total sentence for two thefts, one burglary and failing to surrender to court was also 30 months’ imprisonment.

24.  Mr Chan submits the present case is less serious than both Hui Chi Tong and Wong Chi Wing and therefore a lower total sentence is appropriate. 

25.  I am satisfied a total sentence of 2 years’imprisonment properly reflects the defendant’s criminality on the two charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[6].  

Sentence

26.  The defendant is convicted and sentenced as follows:

Charge 1 – 12 months’ imprisonment; and

Charge 2 – 1 year and 8 months’ imprisonment

I order 4 months of the sentence on charge 1 to be served consecutive to the sentence on charge 2 and 8 months concurrent. The total sentence to be served by the defendant is 2 years’ imprisonment.

[1] Cap 210.

[2] See for example HKSAR v Cheung To Ming [2006] 2 HKLRD 260 and HKSAR v Hai Chung Po CACC 115/2013.

[3] CACC 414/2007

[4] The correct total sentence should be revised to 32 months’ imprisonment.  In HKSAR v Ma Ming [2013] 1 HKLRD 813 the Court of Appeal disapproved of the suggestion in Hui Chi Tong that a defendant who voluntarily confessed and pleaded guilty despite a lack of evidence against him would be entitled to a sentence discount of more than one-third. The Court of Appeal in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1 reaffirmed the position that a judge was not obliged to give a discount over and above the one-third discount explaining that the mitigating factor of a confession was subsumed within the one-third discount.     

[5] CACC 17/2014

[6] See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 and HKSAR v Pau King Kong [2013] 3 HKLRD 676.