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DCCC 994/2020
[2021] HKDC 518
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 994 OF 2020
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| Present: |
Mr Ma Ming Tak, Stephen, counsel on fiat, for HKSAR |
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Ms Tsang Manyi, instructed by Sam Fu & Co, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
Burglary (入屋犯法罪) |
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REASONS FOR SENTENCE
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1. Defendant is convicted of a charge of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210, on his own plea and agreement to the summary of facts.
2. Yadllie Plate, the restaurant named in the particulars of offence, was found ransacked at 12 pm on 21 July 2020. Two mobile phones, a petty cash box, a cash register and cash of $12,000 therein were missing from the cashier counter. Total value of the stolen property was $17,000.
3. CCTV captured the incident. The male who ransacked the shop entered the cargo lift of CTMA Centre barehanded. He left the lift on the 11th floor and entered the storage room of the restaurant. After leaving the storage room, he opened the entrance gate of the restaurant and walked inside. He searched around the cashier counter and subsequently used something to cover the CCTV camera of the restaurant. At 7.37 am, he entered the cargo lift again on the 11th floor holding a carton box.
4. The male in the CCTV footage was recognised as being the defendant, an ex-employee of the restaurant. Defendant was laid off earlier on 14 July 2020.
5. The person in charge of the restaurant confirmed that the practice of all his staff was to hang the key to the restaurant’s entrance gate inside an unlocked storage room outside the restaurant after business hours.
6. On 26 July 2020, defendant called the person in charge of the restaurant asking whether the restaurant was hiring. He was invited to meet the person in charge on 27 July 2020 at the restaurant. He was arrested by police when he appeared on 27 July 2020.
7. Upon arrest and under caution, he admitted that he stole from the restaurant as he was barely working and was in need of money.
8. At the time of arrest, he was wearing a black t-shirt with a skull pattern and a pair of black shorts, which resembled that of the male in the CCTV footage.
9. Defendant admitted the offence in the video-recorded interview under caution.
Criminal record
10. Defendant has 6 previous criminal records involving convictions of 8 charges. The last conviction was in year 1999. One of the previous conviction relate to dishonesty.
Mitigation
11. Defendant’s age is 47 years old. He was born in Hong Kong and studied up to Form 3 level.
12. He worked as a chef since he joined the workforce. Shortly before the offence, he was laid off as a chef.
13. Defendant is single and he lived with his elderly mother who is aged 70. Defendant is the sole breadwinner of his family.
14. It was said by defence counsel that although defendant has numerous previous convictions, he has kept himself out of trouble since the year 1999 and he had a steady job since then. Until the year 2020 when the restaurant trade was hit by the Covid-19 pandemic, his work became very unstable. His income dropped from $20,000 to $5,000-$6,000 per month and he had to borrow money from his friends. He was dismissed without notice on 14 July and in order to get some money for rent and other household expenses, he committed the present offence.
15. It was said that this is a burglary of a non-domestic premises and the offence was carried out in the morning when it was unoccupied. No person was alarmed and no damage was made in order for entering the premises.
16. It was said that the item stolen were of relatively small value and the defendant is not a professional burglar. The defendant committed the offence solely because of the serious financial hardship that he was facing because of the pandemic.
17. Defence counsel also handed in a mitigation letter written by the defendant. It was also said that the defendant had a timely plea in court, showing his remorse and saving court’s time and trouble.
Discussions
18. In passing sentence, this court has carefully considered all that was said on behalf of the defendant, including that of his own mitigation letter.
19. Defendant here acted alone. He used the knowledge he acquired whilst he was previously employed by the restaurant to gain access to the restaurant by getting the key from the unlocked storage room. After entering the restaurant, he covered up the CCTV camera in the restaurant.
20. As the defendant was no longer employed at the time of the offence, strictly, there is no breach of trust but the burglary is not an opportunistic one.
21. The value of the property stolen is of modest value and no one is expected to be within the restaurant at the time.
22. Defendant has 8 convictions of charges in the past with one related to dishonesty in the year 1997. This court does not consider him to be a professional burglar or a persistent offender.
23. It must be said however that the fact that the defendant committed the offence for monetary purpose is not a valid mitigating ground.
24. Having considered all the circumstances of the case and all that was said on behalf of the defendant and considering the mitigation letter, this court considers that the most valid and useful mitigating factor is the defendant’s timely plea for which he is entitled a full one-third sentence discount.
25. Defendant is therefore sentenced to 20 months’ imprisonment for the charge.
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