HKSAR v. LEE CHUN CHEUNG

DCCC 802/2023

[2024] HKDC 860

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 802 OF 2023

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REASONS FOR SENTENCE

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1.  The defendant has pleaded guilty to a single charge of burglary which occurred on 16 April 2023 in Wanchai at the Dalat Vietnamese Restaurant. The Summary of Facts that has been agreed shows that the burglary occurred in the small hours of 16 April 2023.

2.  The premises are at Landale Street in Wanchai and had been locked up on the evening of 15 April at about 10 o’clock in the evening. The burglary became known the next morning around midday when an employee found that the premises had been burgled. At that time, the back door which had been locked earlier was unlocked, the cash register area was chaotic and all the electric switches had been turned off. The defendant’s membership card of a casino in Macau was found in the premises. A total of $6,937 had been taken from the cash register. No prising marks were found on the gate which was unlocked, the cash register or the drawer beneath the cash register where some of the money had been found.

3.  The defendant was eventually identified from the fact he had left his casino card there and also CCTV footage. He was arrested at his home on 17 April. Some of the money was recovered at that time.

4.  The defendant’s explanation of the burglary was that he had been wandering in Landale Street in Wanchai at about 1 am. He had entered the restaurant by opening the back door. He had found a key in the drawer and used that to open the cash register and taken all the Hong Kong dollars inside the cash register. On those facts the defendant clearly has committed the offence and I convicted accordingly.

5.  As far as his antecedents are concerned, he is currently 51 years of age, has been working as a marble and granite polisher at Sandy Barracks before he was arrested. He is divorced and has children who live in Cheung Sha Wan. He has a number of criminal convictions dating back to 1988, a total of 15. Of significance to the sentencing today is that in the year 2000 he was convicted of aggravated burglary receiving 40 months’ imprisonment. In 2013, he committed another offence of burglary for which he was sentenced to 2 years’ imprisonment. Finally in 2020, sentenced to a further 12 months’ imprisonment for the offence of burglary, so there are three previous convictions of burglary.

6.  As far as the approach to sentencing is concerned, there are clear guidelines for the burglary of a non-domestic premises. The conventional starting will be 2½ years’ imprisonment for the burglary of a non-domestic premises, that is for a burglary with no aggravating or mitigating features. It is said that such burglaries involve a measure of planning and a degree of premeditation of planning is already built into the conventional starting point. So the conventional starting point can be lower in a case of what is described as an opportunistic burglar, akin perhaps to a snake thief. Thus defines a person similar to one who walks into an open office to steal whatever he can find. The conventional starting point can be increased in the case of professional criminals who plan burglaries with meticulous care steal goods and cash of considerable value. That is taken from the case of HKSAR v Sim Ka Wing which is unreported at CACC 450/2000.

7.  Where an opportunistic burglary has occurred, sentence starting points can range as low as 18 months’ imprisonment. I am urged by the defence in this case to regard this case as an opportunistic burglary and lower the appropriate starting point.

8.  When considering that, I look at the facts that have been agreed. This offence occurred in the small hours of the morning, that the premises themselves were locked, there is no reason for me to find as true fact that the defendant found it unlocked. We can see from his criminal record that he has experience of burglaries in the past having been convicted of three burglaries including an aggravated burglary. It would appear that defendant had some way of accessing a locked premises. He said that to access the cash register he used a key that he found inside the premises, that may well be correct. Nevertheless, the facts as agreed do not indicate that the defendant is a sneak thief or even an opportunistic burglar though he seems to have targeted this premises in the early hours of the morning. I see no reason, therefore, to depart from the normal starting point of 2½ years’ imprisonment.

9.  However, there is an aggravating feature in this case and that is the defendant’s previous convictions. He was convicted as recently as 2020. That is an aggravating factor and I must acknowledge that aggravating factor in sentence.

10.  So I will take the initial starting point at one of 30 months’ imprisonment. I will increase that to 36 months’ imprisonment to reflect the defendant’s previous convictions for burglary and his failure of deterrence in the past. The defendant is of course entitled to a full one-third discount from that figure. So it will lead to a final sentence of 24 months’ imprisonment.