HKSAR v. TSANG CHUN YIN

DCCC 899/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 899 OF 2016

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REASONS FOR SENTENCE

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1.  Tsang Chun Yin you have pleaded guilty to two charges of burglary and one charge of attempted burglary, contrary to section 11 of the Theft Ordinance[1] and section 159G of the Crimes Ordinance.[2]

2.   Full particulars of the offences are set out in the facts admitted by you on 3 February 2017.  In summary in April last year you burgled the rooms of two students residing at the City University Students Dormitory in Kowloon Tong, where you also resided.  You also attempted to burgle one of the rooms a second time.  

Charge 1

3.  San Hong Chun, a student at the university, resided in Room 302A.  In February and March last year he placed a red packet containing cash of about $4,000 and a wallet containing cash of about $2,700 in the top drawer of his bedside cabinet.  In the evening of 9 April last year the money was discovered missing.

Charge 3

4.  At about 7:30 p.m. on 29 April when Mr San was in his room he saw the door of the adjoining toilet slowly open.  Mr San feeling frightened asked who was there. The toilet door then stopped moving.  Mr San then opened the door and found you inside the toilet.  You confessed to Mr San that you had earlier stolen his money and promised to repay him.  The case was reported to the police.

Charge 2

5.  At about 8 p.m. the same evening Cynthia Wang, a student at the university, who resided in Room 1002B, learnt of the burglary of room 302A.  Ms Wang therefore went back to her room and viewed the CCTV footage.  The footage revealed that at around 7 p.m. that evening you entered room 1002B; searched the room and using a piece of tissue paper to cover your hand stole a $100 bank note placed on Ms Wang’s desk.   

Arrest

6.  You were arrested at 11:40 that night.  Under caution you told the police that on 9 April when you went to visit a resident at Room 304B you noticed that the door of Room 302A was left unlocked.  Out of momentary greed you entered the room and stole the money.   You also told the police that on 29 April you noticed no one was inside room 1002B and therefore you used the key card placed inside the pocket of the door curtain to enter the room and out of momentary greed stole the $100 banknote.

Psychological and background reports.

7.  Taking into account, inter alia, your clear record, I adjourned sentence for psychological and background reports. I have carefully considered the content of the reports. 

Mitigation

8.  In passing sentence, I have carefully considered everything said on your behalf by Ms Cheng together with all the mitigation letters, academic reports and sporting achievements, including that you visited old aged homes to play violin in 2004; you were socially active at school and university, joining many committees and represented Hong Kong at woodball in 2013[3]. 

9.  Ms Cheng tells the court because your A-level grades were not high enough you could not be admitted to university to study a bachelor’s degree.  Instead you studied for an associate degree at the City University.  After completing the associate degree, you worked for a year as a sports attendant.  In 2014 you were offered a place at the City University to study Bachelor of Arts (Honours) in Chinese. 

10.  During the adjournment for the preparation of the reports you have successfully finished your degree and sat your final examinations.  You are now awaiting the result.  Whilst studying you have also worked part-time to support your family, your father having retired[4].

11.  Ms Cheng submits that this was a single fall from grace and that there is no chance that you will reoffend.  I am told you acted out of greed without realizing the serious consequences.  At the time you were indebted to the credit card company having taken out a loan to help your mother pay for medical expenses of your auntie in China.  Wishing to reduce the debt you acted out of greed when you saw the door to Mr San’s room open[5].

12.  I have been shown credit card statements to show your indebtedness but note all the money stolen was not used to reduce your indebtedness[6]; that in the month prior to the burglary you had repaid slightly more[7] and that you told the police you had spent all the money but forgot where you spent the money[8]. 

13.  You told the psychologist that you knew what you were doing but could not explain why you did not stop yourself.  The psychologist’s findings did not suggest that you are suffering from emotional disorders or psychotic episodes which were associated with your acts of stealing.  Psychological treatment is not recommended[9].

Starting point

14.  The correct starting point for a single burglary of domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 3 years imprisonment.

15.  In HKSAR v Law Tin Yam[10] the Court of Appeal said in respect of the burglary of a cubicle in a flat:

“There is no reason why peoples’ homes at the less affluent end of the spectrum should be treated any differently because there occupants do not seem well off. All householders, rich or poor, are entitled to equal protection.”

16.  I am satisfied both student rooms are properly classified as domestic premises. 

Community service

17.  On the day you pleaded guilty Ms Cheng asked the court to impose community service so as to enable you to complete your degree.  As already noted during the adjournment for preparation of the psychological report you finished your degree and are now only awaiting the result. 

18.  Although today Ms Cheng has not repeated her plea in mitigation that I consider community service, you ask, as does your family on your behalf, that you be given a chance to rehabilitate in the open community[11].  I also note that Ms Wong, the student counsellor of City University is of the opinion you might deserve a chance to make compensation for your misdeeds by performing unpaid work for the community[12].

19.  In Secretary for Justice  v Li Cheuk Ming[13] the Court of Appeal held that for serious offences, including bribery and corruption, a community service order would only be imposed where there are exceptional circumstances.

20.  In submitting there were exceptional circumstances Ms Cheng relied on the well-known case of HKSAR v Chow Chak Man & another, in which the Court of Appeal said that where the burglary may be viewed as not serious a community service order may be imposed notwithstanding there were no exceptional circumstances[14].  Ms Cheng also submitted three cases where community service was imposed in the District Court for offences of burglary[15].

21.  The decision inHKSAR v Chow Chak Man & anotherhas been the subject of much criticism in subsequent decisions of the Court of Appeal.  In HKSAR v Wan Ka Kit[16]the Court of Appeal said:

“We emphasise once more that other than in the most exceptional cases, a community service order will rarely be appropriate for burglary or attempted burglary.”

Exceptional circumstances

22.  Apart from relying on your personal achievements Ms Cheng submitted that the burglaries were not the usual type of burglaries.  Taking into account that you were also a student in the same dormitory; there was no prizing of the doors or cabinets; no violence was used; and on being caught by Mr San you confessed to the earlier burglary and promised to repay the money stolen; Ms Cheng submitted there were exceptional circumstances.

23.  Ms Cheng explained the only reason you did not repay that evening was because you were arrested and not allowed to contact Mr San.  At the time Mr San discovered you attempting to burgle his room you promised to repay that evening.  You went home and asked your mother for help.  When you returned to repay you were arrested by the police.  In the interim Ms Wang had discovered the burglary of her room and reported the matter to the warden of the dormitory, who in turn reported the matter to the police leading to your arrest.

24.  When you pleaded guilty on 3 February Ms Cheng told the court you had the money with you to compensate both Ms Wang and Mr San.  Today I am told you consent to your bail money being used to compensate Ms Wang and Mr San.

Individual justice

25.  In determining whether there are exceptional circumstances I have carefully considered the need for individual justice, as articulated in the cases of HKSAR v Leung Pui Shan[17] and HKSAR v Yeung Kwun Kuen[18].  

26.  I am satisfied that the circumstances leading to the commission of the offences in both those cases are very different to the circumstances in your case.  Both were young offenders, Leung 19 and Yeung 21.  In Leung Pui Shan the appellant had not set out to deceive purely for personal gain, the offences being committed in the midst of emotional confusion.  In Yeung Kwan Kuen, the appellant who had been suffering from a long-term mental health problem committed the offences close upon the heels of a traumatic event, namely the death of his grandmother.

27.  You were 24 at the time of the burglaries, which you committed out of pure greed.

Opportunistic burglaries

28.  I have also considered the nature of the burglaries and whether they can properly be classified as opportunistic burglaries.  Lower starting points have been taken where the burglary is said to be opportunistic.  Usually this is where someone passes by an open door or vacant premises and steals food or items of little value[19].  

The first burglary

29.  In mitigation Ms Cheng said you went to visit a friend in room 302B.  When your friend was not in you used the adjoining toilet.  While in the toilet you noticed the door to room 302A was not locked.  Out of greed you entered the room and stole the money. 

30.  As this appeared to conflict with what you told the police that when you went to visit a friend in room 304B you noticed the door to room 302A was unlocked and not that you used the adjoining toilet, I requested translation of the record of interview be provided.  Following translation of the relevant part of the record of interview and after taking your further instructions Ms Cheng clarified that what you had written in the record of interview was correct except that you had mistakenly written room 304B instead of 303B.  Ms Cheng further explained that she had mixed up the mitigation for the first and third burglaries.   

31.  Album 2, photograph 4 showing the door of room 302A slightly ajar, I am prepared to accept the burglary can be classified as opportunistic.  However, sight must not be lost of the fact that whilst opportunistic you stole about $6,700 and not food or items of little value.  

The second burglary

32.  Ms Cheng explains that you went to visit Ms Wang in connection with an inter hall sports event.  On finding Ms Wang was not in and on seeing the key card exposed you entered the room and stole the money.  The prosecution having confirmed that Ms Wang did leave her key card in the pocket hanging on the outside of the door as shown in album 1, photographs 5 & 6, I am prepared to accept, that the burglary can also be regarded as an opportunistic burglary. 

33.  Although in this burglary the amount stolen was only $100 it is quite clear from the CCTV footage, which was played in court, that you did not simply enter and take the $100 but searched the room, including handbags to see what money you could find.  Further at times you were seen using a tissue to cover your hands, no doubt to try ensure you did not leave any fingerprints. 

The third burglary

34.  Ms Cheng explains that shortly after the second burglary you went to see your friend at room 302B.  The door to room 302B was not locked and you therefore entered the room only to find your friend was not there[20].  You then used the adjoining toilet.  On realising that the adjoining room 302A was the room you had earlier stolen the money from, you decided to enter the room again to see if there was any more money you could take. 

35.  The fact that this attempted burglary was so soon after the second burglary suggests this was not opportunistic but rather that you were looking for rooms you could burgle.  The psychologist is of a similar view stating that the repeated acts of stealing suggests that you might not commit the offence at the spur of the moment[21].

36.  Not without some hesitation I am prepared to accept that you went to see your friend at room 302B and only when he was not at home did the opportunity arise to enter room 302A.  In these circumstances the burglary can also be regarded as an opportunistic burglary.

Conclusion

37.  While you are to be commended for your hard work, sporting achievements and helping others in what are essentially various committees, and that the burglaries can be said to be opportunistic, I am nevertheless satisfied that your circumstances and the circumstances in which you came to commit the offences are not exceptional whereby a non-custodial sentence is to be imposed. 

Starting points

38.  Taking into account that the burglaries can be called opportunistic burglaries, I am satisfied the appropriate starting point for each burglary is 2 years’ imprisonment.  Giving you full credit for your plea of guilty reduces the sentence on each charge to 1 year and 4 months’ imprisonment. 

Restitution

39.  Having consented to compensation being made from your bail money I further reduce charge 1 by 2 months to 1 year and 2 months’ imprisonment and charge 2 by 1 month to 1 year and 3 months’ imprisonment. 

Confession

40.  Without your confession to Mr San and the police there was no other evidence on charge 1.  In HKSAR v Ma Ming[22] the Court of Appeal held the fact that a frank confession provides the only evidence which supports the charge did not entitle the defendant to a further discount over and above the one-third discount.  This was reaffirmed in HKSAR v Ngo Van Nam[23] where the Court of Appeal said that a judge was not obliged to give a discount over and above the one-third discount explaining that the mitigating factor of a confession was subsumed within the one-third discount.   

Totality

41.  The court in Ma Ming did however say that when considering the totality of the sentence a court, in exercising its discretion, can take into account the fact that the frank confession of a defendant provides the only evidence to support the charge. 

42.  Where offences are committed in different premises against different victims on different dates, consecutive sentences should be imposed, subject to the totality principle. 

43.  Taking into account all the circumstances of the three burglaries; only a small amount of money was stolen in the second burglary; full restitution has been made; your frank confession to the first burglary; and that the third burglary was an attempt on the same room as the first burglary, I am satisfied a total sentence of 1 year and 10 months’ imprisonment is appropriate.

Sentence

44.  You are convicted and sentenced as follows:

Charge 1 – 1 year and 2 months’ imprisonment and compensation of $6,700 to be paid from your bail money to San Hong Chun;

Charge 2 – 1 year and 3 months’ imprisonment and compensation of $100 to be paid from your bail money to Cynthia Wang; and

Charge 3 – 1 year and 4 months’ imprisonment.

I order the sentences on charges 2 & 3 to be served concurrently with each other with 8 months consecutive and 8 months concurrent to the sentence on charge 1.

45.  The total sentence to be served by you is 1 year and 10 months’ imprisonment, which I am satisfied properly reflects your criminality on the three charges.

[1] Cap 210.

[2] Cap 200.

[3] Full particulars are set out in the documentation submitted by Ms Cheng.  Also see §5 of the psychological report and §3 of the background report.

[4] Also see §§ 5 & 6 of the psychological report.

[5] Also see §11 of the psychological report and §4 of the background report.

[6] When mitigating on 3 February Ms Cheng informed the court that only part of the money stolen was used to reduce the indebtedness to the credit card company.

[7] See credit card statements for 21 Mar and 20 Apr 2016.   Ms Cheng explained this was because in April you would be taking your exams and not working part-time therefore you only settled the minimum payment so as to avoid late finance charge.   

[8] See the translation of the record of interview attached to the letter of Mr Hui dated 16 February 2017.  The translation was provided when the court sought clarification as to whether the mitigation as to the circumstances of the commission of the first burglary was inconsistent with what the defendant had told the police.  This is discussed at §29-31.

[9] See §§12-16 of the psychological report.

[10] CACC 258/2010.

[11] See §§ 6-8 of the background report. 

[12] See §9 of the background report.

[13] [1999]1 HKLRD 63.

[14] [1999] 3 HKLRD 37.

[15] DCCC 1132/2010; DCCC 290/2010 and DCCC658/2014.

[16] [2006] 3 HKLRD 9.

[17] [2008] HKC 241.  Both cases were referred by the court to Ms Cheng but not relied upon. 

[18] CACC 475/2012 & 476/2012

[19] See for example HKSAR v Cheung To Ming [2006] 2 HKLRD 260 and HKSAR v Chau Man Ying CACC 439/2011.

[20] The resident of room 302B confirmed to the police that he did not lock his door, the door was left ajar and that anyone could enter the room without a key. 

[21] See §§13-15 of the psychological report.

[22] [2013] 1 HKLRD 813 at §32.

[23] [2016] 5 HKLRD 1 at §41.