HKSAR v. LEE YIU CHI

DCCC26/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 26 OF 2010

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to two charges before this court, the 1st charge is burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, and the 2nd charge is common assault, contrary to Common Law and punishable under section 40 of the Offences against the Person Ordinance.

2.  You  have admitted that on 9 December 2009 in Hong Kong you entered as a trespasser part of a building which was the storeroom of the Chinese Resources Vanguard Supermarket in Larch Street, Mong Kok, and stole therein one bottle of body wash and five bottles of shampoo.  On that same day at the same place you also assaulted Fung Yik-kam who was a staff member of the supermarket. 

3.  On the day in question the assistant manager PW1 was working at the supermarket.  He returned to work at about 12.15.  He conducted a stock check at the storeroom and after that he closed and locked the door of the storeroom.  About an hour later, he returned to the storeroom, unlocked the door of the storeroom but did not open it.  He was sure, however, that the door remained closed. 

4.  A short moment later he went back to the storeroom.  He found the door of the storeroom was half-open.  He tried to open it but found something inside the storeroom blocking the entrance of the door. He then saw you inside the storeroom.  He saw you taking out a few bottles of shampoo from your rucksack.  He shouted for help.  You then tried to escape through the door but was blocked by him.  Another manager arrived and reported the incident to the police.

5.  You forcibly pulled open the door of the storeroom and after coming out from the storeroom, you picked up a bottle of Jolly Shandy beer and hit it on the left upper arm of the assistant manager, PW1.  Another staff member came to the scene and tried to catch hold of you. Soon there was a struggle between you and the three staff.  You were eventually subdued by the staff members.  The police arrived and you were arrested.

6.  The police seized from you the body wash and the bottles of shampoo.  PW1 confirmed that the items belonged to the supermarket and were placed inside the storeroom.  The value of the stolen properties was $279.40.

7.  The storeroom was inside the supermarket, it was restricted to staff of the supermarket only and customers were not allowed to go in.   The setting and the decoration of the storeroom was very different from that of the shelf area of the supermarket. 

8.  In a subsequent video-recorded interview you admitted under caution that you intended to go to the supermarket to steal. You went straight to the storeroom.  You put a few bottles of shampoo into your own rucksack.  You intended to  leave without making payment.  When you were discovered by the staff, you struggled with the staff members of the supermarket.

9.  As a result of your assaulting PW1, he was sent to the Kwong Wah Hospital for medical treatment.  He suffered tenderness on the right scapula and left upper arm.

10.  You are 34 years of age and have 28 convictions arising from 33 charges.  Out of those 33 charges, two offences relate to burglary and eight offences relate to theft.  Your last conviction was on 23 January 2009 to which you were sentenced to 6 months’ imprisonment.  Your two burglary charges were in 2004 to which you were sentenced to 20 months and 2006 to which there were two charges of burglary there and sentenced to 2 years’ imprisonment.

11.  Your solicitor, Mr Fung, has mitigated on your behalf today.  I have taken into account all that he has had to say.  He has said that quite frankly you have pleaded guilty, you admit that you intended to steal prior to going into the supermarket and that the value of items was small.

12.  The burglary offence is one of a commercial burglary.  There are guidelines as to the sentence to be passed and the starting point is one of 2½ years after trial.  I give you full credit for your plea of guilty and taking that starting point, I reduce the term to one of 1 year 8 months’ imprisonment.

13.  For the 2nd charge, I take a starting point of 6 weeks’ imprisonment and reduce that term to one of 4 weeks’ imprisonment in view of your plea of guilty. 

14.  The two offences are separate and distinct offences.  When you tried to escape, you were apprehended, and used a bottle to hit on the victim’s arm.  It is very fortunate that the bottle did not break and cause very much more severe injuries.  I take into account the principle of totality.  I consider a partly consecutive term appropriate.  In those circumstances I order 7 days of Charge 2 to run consecutive to Charge 1, making a period of 1 year 8 months and 7 days’ imprisonment to which you are so sentenced.