HKSAR v. CHUNG KARMAN

DCCC 883/2021

[2022] HKDC 913

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 883 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to the following 3 charges: Theft[1] (charge 1); possession of identity cards relating to other persons[2] (charge 2); and burglary[3] (charge 3).

Summary of facts

Charge 3

2.  At around 07:55 hours on 14^th June 2021, the manager, Ms Yau, of the Circle K convenience store at shop no.1 on the ground floor of On Yam Shopping Centre in On Yam Estate left a bundle of cash of about HK$7,000 on top of a cabinet inside the kitchen of the store while attending to the oven nearby. 

3.  The store had only one entrance and the kitchen area was not locked up but was restricted for staff.

4.  When Ms Yau went to retrieve the money shortly afterwards, it was no longer on the cabinet, but was in the right hand of the defendant who was on her way leaving the store.  Ms Yau immediately went to intercept the defendant and was able to recover the money from her while they were still in the store. The defendant, however, left. 

5.  The matter was reported to the Police, and the defendant was intercepted at around 08:40 hours at the ground floor of Chak Yam House in On Yam Estate.  The defendant appeared mentally unwell and failed to produce any proof of identity. 

Charges 1 and 2

6.  A body search was conducted and a wallet was found in the defendant’s possession.  The defendant would later say under caution at a video recorded interview that she picked up the wallet and its contents on the same morning from a bench in the park on her way home from Shek Lei Estate. 

7.  Inside the wallet was a cardholder with 3 Hong Kong identity cards (respectively in the names of Mr Lo, Ms Chung and Ms An), 1 Home Visit Permit (in the name of the said Ms An), 1 driving licence (in the name of a Mr Lam), 1 cheque dated 5 February 2021 (issued by a China Post Cross-border eCommerce Limited, payable to Wai Shun Paper Factory Limited), and 4 non-identity related cards.  Investigation revealed that the identity documents were genuine. 

8.  The defendant admitted that she had stolen the wallet and its contents; that she did not have lawful authority or reasonable excuse to be in possession of the 3 Hong Kong identity cards that related to other persons; and that she had entered the kitchen of the store as a trespasser and stole cash of about HK$7,000.

Previous conviction record

9.  The defendant has two previous criminal convictions.  The first conviction was dated 19 February 2019 when she was sentenced to be remanded in the Drug Addiction Treatment Centre for being in possession of dangerous drugs. Her second conviction was on 29 June 2021 for theft by shoplifting and was fined $600.  The defendant committed the present offences whilst on bail for that case.

Background and Mitigation

10.  The defendant is 23 years old, and was 21 at the time of the commission of the offences in this case.  She was educated up to Form 3 level and worked as a salesperson prior to her remand.

11.  The court was told that the defendant’s parents separated when she was 2 years old, when she was left to the care of her father and paternal grandparents.  The defendant would only contact her mother via WhatsApp once several years.  Although the defendant lived with her father, he paid little attention to her, the defendant was brought up by the grandparents who are in their 70s and 80s.  The defendant’s grandmother has been suffering from breast cancer and receiving treatment.  During the defendant’s present remand, her grandfather has been told that there is a tumor in his stomach.

12.  The defendant received minimal parental care and discipline during her childhood and went wayward when she was 16, mingling with dubious peers.  The defendant claims that she is not a drug addict.

13.  The defendant wrote in her letter of mitigation that she took the money with a mind to help pay for the medical expenses of her grandmother for her cancer treatment. 

14.  Ms Lam in her written submissions in mitigation pointed out that the defendant’s theft of the wallet is a case of theft by finding; that there is nothing to suggest that the defendant had used, or intended to use, the identity cards for whatever purpose. 

15.  Ms Lam submits that the stealing of the wallet and the possession of the identity cards inside arose from the same incident, with the cards being part of the stolen properties, and so the sentences for the two charges should be made wholly, or at least partially, concurrent.

16.  As for the burglary, Ms Lam submits that it was an opportunistic burglary since the money was left on top of the cabinet by the store staff.  The taking of the money was not skillfully executed; there were no tools or weapons involved; and the defendant returned all the money when she was intercepted. 

Sentence

17.  The maximum sentence on conviction upon indictment for the 3 offences, respectively, are 10 years’ imprisonment; a fine of level 6 and imprisonment for 10 years; and 14 years’ imprisonment. 

Charge 3

18.  I accept the submissions put forward by Ms Lam and find that the defendant was an opportunistic burglar when she took the money on top of the cabinet.

19.  According to CCTV footages, the defendant entered the store at 07:47 and browsed around.  She was outside the kitchen 1 minute later, and then by 07:49 she was heading towards the exit of the store, with Ms Yau following, suggesting that the taking of the money happened within 2 minutes.  The defendant left the store at 07:50.  The whole incident lasted no more than 3 minutes. 

20.  While it is possible that the defendant had learned about the routine of Ms Yau and so was able to be at the store at the right time to commit the burglary, there is no direct evidence that such was the case.

21.  The available facts support the drawing of the inference that the defendant, having entered the store with no intention to steal, chanced upon the money and decided there and then to take it.

22.  It is the prosecution’s case that the trespassing took place when the defendant entered the restricted kitchen area to take the money, not when she entered the store, which is in line with the defendant’s version of fact of her forming the intent to steal only after seeing the money on the cabinet having entered the store without any such intent.

23.  That being the case, the defendant can be rightly regarded as an opportunistic burglar and be sentenced accordingly.

24.  It is trite law that the guideline sentence for burglary involving a non-domestic premises is a starting point of 2 and a half years’ imprisonment, subject to mitigating or aggravating factors. 

25.  Given my finding that the burglary was an opportunistic one, the sentencing considerations as propounded in HKSAR v Cheung To Ming [2006] 2 HKLRD 259; CACC 406/2005 apply. 

26.  There the Court of Appeal approved and adopted the following approach set out in the earlier case of HKSAR v Sim Ka-wing:

“11. Ms Lai also very properly drew our attention to the judgment in HKSAR v Sim Ka-wing, CACC 450/2000 which states as follows:

9. The conventional starting-point of 2½ years’ imprisonment for the burglary of non-domestic premises relates to burglaries with no aggravating or mitigating features. Such burglaries will involve a measure of planning, and thus a degree of premeditation and planning is already built into the conventional starting-point. The conventional starting-point can be lowered in the case of the opportunistic burglar, akin perhaps to the sneak thief who walks into an open office to steal whatever he can find. Likewise, the conventional starting-point can be increased in the case of professional criminals who plan their burglaries with meticulous care and steal goods and cash of considerable value.”

27.  Taking into consideration the opportunistic nature of the defendant’s commission of the burglary, the amount involved, and the fact that the stolen money was handed over immediately by the defendant when she was confronted and while still inside the store, I adopt a starting point of 18 months’ imprisonment. 

28.  The defendant is granted the full one-third discount for her timely plea of guilty, leading to a sentence of 12 months’ imprisonment for charge 3. 

Charge 2

29.  Sentencing guidelines for possession of another person’s identity card and related offences are found in the case of HKSAR v Li Chang Li [2004-2005] HKCLRT 193; HCMA 935/2004, where the main concern of the Court of Appeal was to punish and deter illegal workers using identity cards of others to obtain employment:

“40. In our judgment, for the offence of possessing a forged identity card or identity card belonging to another, even if the offender’s presence in Hong Kong is lawful, the starting point upon a plea of guilty should ordinarily be 12 months’ imprisonment, so as to reflect the seriousness of the offence and serve deterrent purposes.”[4]

30.  According to the summary of facts of the present case, it is the defendant’s assertion that the 3 different identity cards were already in the wallet when she picked it up from the bench.

31.  There is no evidence as to when, where or how the owner of the identity cards had lost their cards, nor how they came to be in the wallet.

32.  There is no evidence to suggest that the defendant had herself stolen the identity cards and put them into the wallet.

33.  The cheque found in the wallet is dated 5^th February 2021, which was 4 months from the day of the offence.  There is no information as to how the cheque came to be in the wallet.

34.  The facts as admitted by the defendant are not inconsistent with her assertion that she found the wallet by chance and had kept it.

35.  As Ms Lam correctly pointed out, there is no evidence that the defendant intended to use the identity cards to obtain employment.  She would not have needed one since she is herself a Hong Kong identity card holder. 

36.  If the defendant had any sinister intentions with the identity cards, and if she was lying about finding it on the morning of the burglary, she could have just left the wallet at home and take out one of the identity cards for whatever illegal purpose she had in mind.  There was no need for her to bring the wallet with all the contents with her. 

37.  Unlikely as it may seems, I find that the defendant may be telling the truth in her video recorded interview about finding the wallet with the contents already inside. 

38.  That being the case, I find that I can depart from the guidelines in Li Chang Li.

39.  I will adopt a starting point of 9 months’ imprisonment in relation to charge 2, which is discounted to that of 6 months’ imprisonment upon the defendant’s timely guilty plea. 

Charge 1

40.  Although this is the defendant’s second conviction for theft, her earlier conviction came after her commission of the theft in the present case. I will not enhance her sentence on this basis. 

41.  On the other hand, the defendant committed the present offences whilst on bail for the earlier theft by shoplifting case.  This is an aggravating factor. 

42.  Based on my findings that the defendant may be telling the truth about finding the wallet, but bearing in mind the defendant committed the offence whilst on bail for a similar offence, I find that an immediate custodial sentence is necessary, and adopt a starting point of 6 months’ imprisonment for charge 1, discounted to 4 months upon the defendant’s plea. 

Totality

43.  Given the overlapping factual matrix between the 2 offences, I order that the sentences in charge 1 and 2 to be served wholly concurrently, leading to a sentence of 6 months’ imprisonment for the 2 charges. 

44.  As for charge 3, since it took place at a different time and a different place involving different victims, I find that the sentence should not be wholly concurrent to the sentences in charges 1 and 2.

45.  Taking a step back, I order that 3 months of the sentence in charges 1 and 2 to run consecutively to the sentence in charge 3, the balance concurrently.

46.  The final total sentence for the 3 charges is, therefore, 15 months’ imprisonment after plea.