HKSAR v. CHENG WING YUEN, ANDY

DCCC 58/2024

[2025] HKDC 388

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 58 OF 2024

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REASONS FOR SENTENCE

The defendant faces 4 charges of "Burglary". He pleaded guilty to Charges 1, 3 and 4. The prosecution applied to leave Charge 2 in the court file; not to be proceeded against the defendant without leave of court. I granted the application.

Summary of Facts

Background

2.  Golden Household Company Limited ("Golden Household")  engaged in selling household products.  It had 2 shops situated respectively at Shop G13, Ground Floor, COO Residence, No.8 Kai Fat Path, Tuen Mun (Shop 1)  and Shop E, Ground Floor, No.122 Belcher's Street, Kennedy Town (Shop 2).

Charge 1

3.  About 6:00 p.m. on 14 September 2023, Mr. Wong, a staff member of Shop 1, informed Mr. Tse (PW2), owner of Golden Household, that cash in the sum of $27,300 was missing from the cashier counter.

4.  CCTV footage of Shop 1 showed that about 9:00 p.m. on 13 September 2023, the defendant opened the electric roller shutter and went inside.  About 2 minutes later, he left Shop 1 holding something in his left hand.  PW2 recognized the defendant as his employee who had stopped showing up for work after 12 September 2023 without giving notice.

Charge 3

5.  In the early morning on 6 October 2023, the Police informed PW2 that the electric roller shutter of Shop 2 was left half open.  Upon checking, PW2 discovered that cash in the sum of $500 and a mobile phone (valued at $1,500)  went missing.

6.  CCTV footage of Shop 2 showed that about 10:53 p.m. on 5 October 2023, the defendant was inside. He took a screwdriver from the cashier counter and prized open the drawer.  He then took some cash and a mobile phone from the drawer.

7.  The repair costs of the roller shutter of Shop 2 were $3,000.

Charge 4

8.  Ground Floor, No.583 Nathan Road, Mongkok was used as a clearance outlet selling household products (Shop 3).

9.  About 8:45 a.m. on 15 October 2023, Madam Ke (PW3), a staff member of Shop 3, returned to work and discovered signs of ransacking.  Upon checking, PW3 confirmed that cash in the sum of $139,840 and a memory card of Shop 3's CCTV went missing.

10.  CCTV footage of No.585 Nathan Road showed that about 10:20 p.m. on 14 October 2023, the defendant entered Shop 3.  He left after about 3 minutes.

Arrest and admissions

11.  On 17 October 2023, the Police stopped the defendant at Reclamation Street in Mongkok for enquiry.  Upon search, cash in the sum of $34,560.50 was found on the defendant.  He was arrested for "Burglary".

12.  In his video recorded interviews, regarding Charge 1, the defendant admitted having entered Shop 1 and taken 3 stacks of cash wrapped in newspaper from the cash drawer.  He did not count how much money he had taken and had spent it all. Regarding Charge 3, the defendant admitted having entered Shop 2 and taken some cash.  He used to work at Shop 2 but had already quit at the time of Charge 3. Regarding Charge 4, the defendant admitted having prized open the roller shutter and the cash drawer of Shop 3 with a screwdriver.  He took some cash from a bag he found in the cash drawer and had spent the money on drugs and rent.  He had never worked at Shop 3.

Mitigation & Sentence

13. The defendant is 51 and has 6 conviction records, which included 3 "theft" offences (all dated 1996). His last conviction (a "simple possession" offence)  is dated 2012. Defence counsel Mr. Wong informed me that the defendant is not formally married, but has an adult daughter with his girlfriend. He used to work as an air-conditioning technician and has taken up casual jobs from time to time, earning about $20,000 per month. He lost his job around 2019.

14. In mitigation, Mr. Wong submitted that the defendant was cooperative with the Police throughout. The present 3 offences did not involve extensive planning or sophisticated execution. The defendant committed the offences when the shops were closed; he, therefore, did not encounter any person.

15. Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious)  is no mitigating factor for committing a crime. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. The defendant having committed 3 burglaries within 3 weeks is an aggravating factor[1]. As an employee (or immediate ex-employee)  of Golden Household, burgling Shops 1 and 2 constituted a classic Barrick type of breach of trust, which is also an aggravating factor. On the other hand, I accept that the defendant has managed to behave himself for over 10 years since his last conviction in 2012. I will not increase the starting point because of his "theft" convictions.

16. For Charges 1 and 3, I adopt a starting point of 36 months' imprisonment each. With the timely guilty plea, the sentence for each charge becomes 24 months. Apart from this, I see no other mitigating factors which warrant any further reduction. I sentence the defendant to 24 months' imprisonment for each charge.

17. For Charge 4, in addition to the multiple burglaries factor, the amount of cash stolen is significant. I will also adopt a starting point of 36 months' imprisonment. With the timely guilty plea, I sentence the defendant to 24 months' imprisonment.

18. Bearing in mind the totality principle, I consider a global a starting point of 48 months' imprisonment appropriate for Charges 1, 3 and 4. With the timely guilty pleas, the overall sentence becomes 32 months. I understand that the defendant has arranged to pay $3,000 to Golden Household as compensation for the broken roller shutter of Shop 2. I will grant him an additional discount of 1 month, reducing the overall sentence to 31 months. Hence, I order the sentences to run in the following manner :-

(i)  3 months in Charge 3 consecutive to Charge 1;

(ii)  4 months in Charge 4 consecutive to Charges 1 and 3.