HKSAR v. LAU CHUN HO

DCCC 1262 /2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1262 OF 2011

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Burglary".

2.  At the time of offence, the defendant was an employee of San Lung Fung Dispensary situated at San Fung Avenue, Sheung Shui, New Territories ("the Dispensary").  The Dispensary had a storeroom situated at M/F, No.113 San Fung Avenue ("the Storeroom"). The key to the Storeroom was kept inside a drawer located at the Dispensary; all staff members had access to that key.

3.  About 10:00 pm on 22 May 2011, Mr. KOON Man-chung, manager of the Dispensary, found the key to the Storeroom missing. He then used a spare key to lock the Storeroom.  About 4:00 pm on 23 May 2011, Mr. KOON viewed the CCTV recording of the Storeroom.  He saw the defendant entering the Storeroom about 3:50 am on the same day.  He also saw the defendant taking away a total of 4 boxes of milk powder (total value in the sum of $6,114) on 2 occasions (just a few minutes apart).  Mr. KOON had never instructed the defendant to do so.

4.  Mr. KOON questioned the defendant and the defendant admitted having stolen 4 boxes of milk powder out of greed.  The matter was reported to the Police.  Under caution, the defendant admitted to the Police that he had stolen the milk powder from the Storeroom out of greed. He further admitted that he had sold the milk powder to a male named "Ah Wah" for $3,000 at a minibus stop on San Fat Street, Sheung Shui about 4:00 pm on 23 May 2011.

6.  The defendant is now 20 years old.  He has previous convictions of "Robbery" and drug-related offences dated 4 to 5 years ago during his teenage years.  For those offences, he was treated very lightly by the court.

7.  Defence counsel Miss YEUNG submitted that the defendant had a credit card loan in the sum of $20,000, which he did not want his family to know about.  On the day of the offence, the defendant was approached by a customer asking him to steal some milk powder.  The defendant foolishly agreed to do so.  Miss YEUNG stressed the defendant's age and submitted that the defendant had no premeditation in committing the present offence.

8.  Miss YEUNG invited this court to consider a Community Service Order Suitability Report.  Mitigation letters written by the defendant, his mother and his younger sister were submitted; their contents are duly noted.  Finally, Miss YEUNG informed this court that the defendant is willing to compensate fully the Dispensary.

7. In my view, Community Service Order is plainly inappropriate and thus out of the question in the present case. Despite his age being under

21, the defendant is certainly not a man of good character and is no stranger to correctional institutions or prison. For the offences he committed as a teenager, the court has fairly given him the proper chances to rehabilitate. As a matter of fact, he has exhausted all his chances. Notwithstanding the defendant's age, I consider it unnecessary to call for any other pre-sentencing reports. An immediate prison term is the only available and appropriate punishment for the defendant in this case.

8. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. In HKSAR v SIM Ka-wing CACC 450/2000, the Court of Appeal held :-

"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…

Breach of trust is, of course, regarded as an aggravating feature in cases of dishonesty. But it is so regarded because the offender will have abused the trust reposed in him. That trust may have involved an employee being entrusted with his employer’s money or valuables, or being placed by his employer in a position whereby the dishonest employee could defraud his employer or his employer’s customers or clients." (see 2^nd and 3^rd paragraphs, p.5 of the judgment)

Although the total value of the milk powder stolen by the defendant is relatively insignificant, the material issue is the defendant took advantage of his unrestricted access to the key to the Storeroom and then stole from his employer. An element of breach of trust is clearly involved here.

9.  Having taken into consideration of the defendant's personal background, the value of the stolen goods and the breach of trust element, I consider the appropriate starting point to be 2.5 years. One-third discount is given for the guilty plea, reducing the sentence to 20 months.  I will in due course make a compensation order in the sum of $6,114 in favour of the owner of the Dispensary (amount to be deducted from the defendant's bail).  I will give the defendant a further reduction of 2 months to reflect his willingness to compensate the Dispensary.  Other than that, I see no other mitigating factors which warrant any further discount.  The sentence I impose is therefore 18 months' imprisonment.