HKSAR v. CHEUNG WAI YING

DCCC 562/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.562 OF 2011

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Reasons for Sentence

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1. The defendant faces 4 charges, being charge 1 for theft, charge 2 and 3 for burglary and charge 4 for attempted burglary. He pleaded guilty to all 4 charges.

Facts

Charge 4: attempted burglary

2. The defendant was stopped by security guards while tampering with the chain of Shop 121A in Wong Tai Sin Shopping Centre. The defendant fled but was later apprehended by Police officers. Under caution, the defendant admitted that his family needed money and the defendant intended to burgle Shop 121A. The defendant intended to use a pair of pliers which he had with him in his bag to cut the chain and enter Shop 121A to steal money “again”. The defendant tried to cut the chain but was unsuccessful and then he was seen and so he fled.

Charge 1: theft

3. The defendant was arrested and further cautioned. Under caution the defendant admitted that he had earlier stolen a router, a notebook computer and a modem from a booth of SmartTone located outside Shop 5 of Wong Tai Sin Shopping Centre on 7^th April 2011. The defendant said under caution that he had lost his money at gambling and so he tried to find some money. The defendant used the plier to cut the padlocks, stole the said items by taking them away in his bag. The items were still at the defendant’s home.

Charge 2: burglary

4. The defendant further confessed that he had burgled Shop 26 at the same shopping centre on 8^th April 2011. The defendant used a nail clipper to prize open the plate of the switch box for the roller-shutter and then raised the roller-shutter. The defendant entered stole the money from the cash register, lowered the roller-shutter back and then left.

Charge 3: burglary

5.  Lastly, the defendant confessed to the first burglary of Shop 121A he had mentioned earlier under caution. The defendant said he had lost all his money gambling and so he decided to burgle Shop 121A. The defendant pulled at the rear door of the shop forcefully and managed to open it. The defendant prized open the cash register with a pair of scissors found in the shop and stole some cash. The defendant also took some coins from a drawer. The defendant then left by the same rear door, pushing it close forcefully from the outside.

Previous convictions

6.  The defendant has 9 previous convictions. His last conviction was for the possession of dangerous drugs in November 2009 when he was sentenced to the DATC. Of the 9 convictions, 3 were for theft or attempted theft. His last conviction involving dishonesty was in 2007 when he was convicted for 3 counts of theft and 1 count of attempted theft and sentenced to the DATC.

Mitigation

7.  The defendant is 27, his father and his mother were divorced when he was 12. The breaking up of the family had an adverse effect on the defendant, resulting in his first criminal conviction in 1998.

8.  I was told that the defendant’s mother had lost lots of money in what is commonly referred to as London Gold scams. Prior to that, she came from Thailand where she had bought some land. After the London Gold incident, she had to borrow money from finance companies to repay her debts.

9.  The defendant was employed as an air-conditioner technician after he was released from the DATC last year in March. He was employed for 1 year, but on 5^th April 2011, the defendant was dismissed. Mr. Chan for the defendant said that the defendant took the money received from his dismissal and went to gamble, hoping to win some money to help out his mother. The defendant was concerned about not being able to contribute money to his mother to make the monthly interest payments to the finance companies. According to the defendant’s observation, when the mother failed to pay, debt collectors would come and cause serious trouble. The defendant and his mother are very close and he wanted to help his mother out in the repayment of debt. That’s why he had to find money for his mother.

10.  The defendant unfortunately lost his money and in a moment of desperation turned to crime, hoping to get the money back to help his mother out. Mr. Chan further suggested that the defendant’s drug addiction might also have added to his desperation.

11.  In relation to charge 3, Mr. Chan reminded the court that the defendant volunteered the admission to the Police, the wallet was not found on his person nor captured on CCTV. It would have been difficult for the prosecution to prove charge 3.

12.  Also in relation to charge 3, unlike in charge 2 when the defendant had tampered with the roller-shutter switcher box, the defendant only pulled open the rear door forcefully without tampering with the door lock.

13.  Mr. Chan further submitted that the door in charges 2 and 3 was pried open and there was no use of substantial violence.

Sentencing guidelines

14.  It is not disputed that the premises involved in charges 2-4 are non-domestic premises. The usual starting point, without any mitigating or aggravating factors, for burglary of a non-domestic premises is that of 2 and a half years’ imprisonment.

Sentence

15.  Having heard the mitigation put forward on behalf of the defendant by Mr. Chan, I find that there is nothing to allow me to depart from the sentencing guidelines in relation to the burglary and attempted burglary charges.

16.  Although the defendant lost his job, instead of starting to look for another job he decided first to go and gamble, and then when he lost the money, he immediately decided that he will steal and burgle to try to get out of the hole he had dug for himself. There is no one but himself to blame for his present predicament.

Charge 1

17.  For the theft, I will adopt a starting point of 9 months’ imprisonment, reducing it by one third in recognition of his guilty plea and sentence the defendant to 6 months’ imprisonment.

Charge 2, 3 and 4

18.  For the burglaries and attempted burglary, I will follow the guidelines and adopt a starting point of 30 months’ imprisonment for each of the 3 charges, reducing them to 20 months’ imprisonment each in recognition of the defendant’s guilty plea.

Totality

19.  The theft, the burglaries and the attempted burglary were all committed on different days. They were however committed within close proximity to each other, both in terms of time and location. In the case of charge 3 and 4, they were even of the same premises.

20.  Bearing in mind the principle of totality, I will order that 2 months of charge 1, 4 months of charge 2, 4 months of charge 3 be served consecutively to the sentence in charge 4. In other words, the defendant is sentenced to a total of 2+4+4+20 = 30 months’ imprisonment.