HKSAR v. TSANG TSZ MAN

DCCC 316/2020

[2020] HKDC 1196

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 316 OF 2020

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Reasons for Sentence

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1.  The defendant has pleaded guilty to a sole count of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210. The particulars are that the defendant, on 25 April 2016, entered as a trespasser a restaurant in Shop G9-G10, Ground Floor, Un Chau Shopping Centre, Un Chau Estate, Cheung Sha Wan, Kowloon and stole $52,540.

2.  The facts of this case are straightforward.  At the material time, the defendant was the assistant manager of this restaurant. The restaurant kept a float of cash in its safe in an office inside the restaurant.  The office door was secured by a password combination lock and the safe was secured with a key-lock and also a password combination lock.  The defendant was one of the members of staff who had keys to the safe and knew all the necessary passwords to get to the safe.  The money kept in the safe would be counted and audited twice a day by those in charge. 

3.  On 24 April 2016, at 10 pm, the manager and another staff member checked the revenue kept in the safe and counted $63,772.20. After that audit, they locked the safe and all the room doors and left. 

4.  On the following day, 25 April 2016, the defendant was required to start work at 7 am.  He did not turn up.  At 7.25 am, the manager arrived and called the defendant but his mobile was disconnected. The manager was busy opening the restaurant and not until 9.24 am that morning did they check the revenue kept in the safe.  They found HK$52,540 missing from the safe.  There was only a balance of HK$11,000-odd.  The manager tried to call the defendant again but could not get through. 

5.  The CCTV camera footage was examined and the defendant was seen entering the shop at 5.13 am on 25 April 2016.  He was seen entering the office, opening the safe and taking away cash.  He then left the premises.  The restaurant reported the theft to the police and efforts were made to locate the defendant but in vain. 

6.  On 1 February 2020, the defendant was intercepted by the police on the street in a stop and search.  His wanted status was revealed and he was then arrested.  Under caution at the scene, he remained silent.

7.  However, later under caution and during an interview, he admitted that he worked at the restaurant from February 2016 and was the assistant manager.  He admitted he had a key to the office and knew the password.  He also had a key and password to the safe.  He admitted that he entered the premises in the early hours of the morning on 25 April 2016 and using his keys and knowledge he opened the safe and took around HK$50,000. He committed the offence because he had no money at the time. 

Mitigation

8.  The defendant is now 38 years old and single. He lives with his mother.  His best mitigation is his plea of guilty. Everything that can be said on his behalf has been submitted in mitigation and in letters. 

9.  He is not a man with a clear record.  In 2007, he was convicted of theft and served a 6 months’ sentence imposed by Tuen Mun Magistracy.  He also served another 6 months’ term of imprisonment for theft imposed by Kwun Tong Magistracy on 3 February 2020, several days after his arrest for this offence.  He was on police bail for theft when he committed this offence. 

10.  In mitigation, I have heard that the defendant did well at school and has worked hard since leaving school.  He has been gainfully employed since 2001 in the food and beverage industry.  He supports his mother financially. 

11.  What drove him to commit this burglary was medical bills mounting as a result of his mother suffering from stomach cancer between 2014 and 2018.  He spent over $100,000 on medical treatment.  The defendant did not have many friends nor did he want to bother family and ask for loans.  In order to pay these medical bills and their everyday expenses, he committed two crimes including this burglary. 

12.  Since committing this burglary, he has been hiding from the police but also working at Wing Fat Kitchen.  His employer, despite now knowing of this burglary and his theft convictions, is willing to continue to support and employ him again in the future after he has served this sentence. 

13.  The defendant is remorseful and sorry he has disappointed his mother and brother.  They nevertheless continue to support him and visit him regularly.  He has learnt his lesson and will not reoffend. 

Reasons for Sentence

14.  It is the norm to find a starting point of 2 years and 6 months’ imprisonment appropriate if it was a burglary of non-domestic premises and there is or there are no aggravating or mitigating factors to consider.  Defence counsel has submitted that there are no serious aggravating factors that would mean I should depart from the norm and, alternatively, if I do not agree, then I should treat him as leniently as humanly possible. 

15.  The defendant has pleaded guilty and confessed to the police under caution.  There are no real mitigating factors in this case for me to depart from the norm.  However, he was in a position of trust and privilege; he had passwords and keys to the money in the safe.  That is an aggravating factor I should not ignore.  I therefore take a starting point of 2 years and 6 months’ imprisonment and increase it by 3 months to reflect that aggravating factor.  I then reduce the starting point of 2 years and 9 months by 11 months to reflect his early plea. 

16.  Accordingly, the defendant is sentenced to 1 year and 10 months’ imprisonment.