HKSAR v. CHENG YAU MO (also known as FU KEUNG)

DCCC 525/2021

[2021] HKDC 1648

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 525 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty before me to two charges of Burglary, both contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210. The particulars of both charges are that the defendant on 23 January 2021 in Hong Kong entered as a trespasser part of a building known as:-

(i)  “Atelier Gute”, Shop No B224A, Level B2, Times Square, No 1 Matheson Street, Causeway Bay stole therein cash of HK$4,443.50 (Charge 1); and

(ii)  “A-1 Bakery”, Shop No 1, Ground Floor, Island Crest, No 8 First Street, Sai Wan, stole therein one cash tray of the cash register and cash of HK$200.20 (Charge 2).

Facts

2.  The defendant was once employed by a delivery company (“the Delivery Company”)  as a delivery worker responsible for delivering breads to various bakeries of “A-1 Bakery” on Hong Kong Island including the offence locations of Charge 1 (“Location 1”)  and Charge 2 (“Location 2”).  “A-1 Bakery” provided the Delivery Company with keys to the bakeries for delivery purpose and the keys were kept in the Delivery Company’s van.  The defendant’s employment with the Delivery Company ceased from 17 January 2021.

3.  In the morning on 24 January 2021, when staff members of Location 1 and Location 2 went to work, they found all the money in their cash registers missing.  A sum of HK$4,443.50 was missing from the cash register in Location 1 and a sum of HK$200.20 together with the cash tray of the cash register holding the sum were missing from Location 2.

4.  CCTV footages showed the defendant had appeared in both offence locations in the evening on 23 January 2021.  At 11:03 pm the defendant entered Location 1, prized open the cash register, stole all the cash from it and left at around 11:18 pm (Charge 1).  At 11:33 pm he entered Location 2 and left at 11:47 pm with the cash tray of the cash register and all the money contained in it (Charge 2).

5.  The defendant was arrested on 25 January 2021.  Under caution, he admitted that he was unemployed and was in need of money so he stole.  As he found the sum of money stolen from Location 1 was not enough, he went to Location 2 to steal.

6.  In a subsequent cautioned interview, the defendant further admitted that since he had been dismissed from the Delivery Company, he became unemployed but was in need of money, so he used the duplicate keys to Location 1 and Location 2 that he made during his employment with the Delivery Company to enter and steal from both locations on 23 January 2021.  He knew that he had no authority to enter those locations at the material time.  He had spent all the money stolen.

7.  At the material times, the defendant entered Location 1 and Location 2 as a trespasser and stole the property as listed in the charges.

Personal and family background

8.  The defendant is 37 years old.  Counsel told the court that he lives with his mother who is aged 68 and dependent on the defendant.  The defendant is educated up to secondary three.  He had been employed by the Delivery Company as a delivery worker earning HK$17,400 per month until 17 January 2021.  He used to give a monthly contribution of HK$10,000 to his mother.  He has no siblings.

Criminal record

9.  The defendant has appeared in court on 12 occasions amassing a total of 14 convictions of which six were for theft.  There are no other dishonesty offences or burglary.  The defendant was last convicted for theft on 7 October 2013 and sentenced to the Drug Addiction Treatment Centre.  After that, he got one more conviction on 13 March 2017 for trafficking in a dangerous drug and was sentenced to 55 months’ imprisonment.  He was last released from a correctional institution for that offence on 4 October 2019.

Mitigation

10.  Counsel points out that both burglaries were committed in non-domestic premises.  Citing HKSAR v Cheng Wai Kai, CACC 338/2007, counsel submitted that the normal starting point for non-domestic premises burglary is 30 months’ imprisonment and which can be adjusted upwards if aggravating circumstances exist.  Counsel submitted that there are no such aggravating circumstances in this case.  The defendant is not a professional burglar.  He committed the offences alone.  The sum of money stolen is not particularly substantial.  The defendant did not use any equipment to break into the premises and no damage was thus caused.  The premises concerned are not substantial premises and no one was inside when he broke into them.

11.  Counsel submitted that the defendant committed both offences on the same day within a very short period of time representing one course of action.  He asked the court to impose a concurrent sentence and be lenient to the defendant.  The defendant was driven by momentary greed in committing the offences because he was out of work and was in financial hardship in maintaining a living for himself and his mother.

Consideration

12.  In sentencing the defendant, I have borne in mind the facts of this case, the background of the defendant and all the matters urged on the defendant’s behalf by his counsel.

13.  In my view, both charges should be dealt with together as far as sentencing is concerned.  It is because the defendant committed both offences within less than an hour against two bakeries under the same company group (“A-1 Bakery”)  albeit at two different locations.  I would therefore impose a global sentence for these two charges and order these two sentences to run concurrently. 

14.  In these two offences, the defendant stole a total sum of HK$4,643.70 and a cash tray of a cash register.

15.  Both burglaries concerned non-domestic premises.  The correct starting point for burglary offending of non-domestic premises where there are no aggravating or mitigating features is 30 months’ imprisonment (see The Queen v Wong Man [1993] 1 HKC 80, Attorney General v Lui Kam Chi [1993] 1 HKC 215). 

16.  In my view, there is no valid justification to depart from the normal sentencing tariff.  I adopt 30 months’ imprisonment as the starting point for each of Charges 1 and 2.

17.  In the case of Cheng Wai Kai, the Court of Appeal pointed out that the starting point could be adjusted upward if there were aggravating circumstances which would include:-

“(1)  the offence is carefully planned and skillfully executed involving the use of heavy instrument or equipment;

(2)  the offence is committed by two or more people;

(3)  the offence targets at substantial premises and involves substantial properties;

(4)  the offender is a professional burglar and not just an opportunist;

(5)  the offender has previous convictions, particularly previous conviction of similar nature, and

(6)  the offender commits multiple offences.”

18.  I accept that the amount of money stolen and the loss to the victim were relatively small and the defendant acted alone at the material time.

19.  However, I find number (5)  and (6)  of the 6 aggravating factors identified in Cheng Wai Kai are present in the present case.

20.  First, the defendant has 6 previous convictions of theft, which is similar in nature to the present burglary offending as both are dishonesty related.  Secondly, the defendant committed two burglaries at different locations at the material time albeit they were both branches of bakeries under the same company group, “A-1Bakery”.  After finding that the sum of money available to be stolen was too little in Location 1, the defendant then decided to go also to Location 2 to steal.

21.  Besides, although this case does not qualify as a breach of trust case as the defendant no longer worked for the Delivery Company when he committed the present offences, he made duplicate keys to the premises, obviously not for work purpose as keys were readily available in the van of the Delivery Company, when he was still working for the Delivery Company.  However, he kept those duplicated keys when his employment was terminated and used them to break into the premises concerned.  This shows a certain degree of planning on the part of the defendant in committing the burglaries.  His counsel in court also acknowledged that the defendant’s offending involves a certain degree of planning.  I accept, though, there is no evidence that the offences were carefully planned and skillfully executed.

22.  Taking into account all these aggravating features, I am satisfied that the starting points are to be increased by 3 months to 33 months’ imprisonment.

23.  It is clear that the only valid mitigating factor is the defendant’s guilty plea.  Even if it is true that the defendant had to make money to support himself and his mother due to unemployment, financial reason of this kind can only be regarded as an explanation why he committed the offences as he did but it cannot and will not be regarded as a mitigating factor.

24.  Full credit should be given to the defendant for his timely plea.  After one-third discount, the defendant is sentenced to 22 months’ imprisonment for each of Charges 1 and 2, and I order both sentences to run concurrently.

25.  In summary, the defendant has to serve a total term of 22 months’ imprisonment.