HKSAR v. CHENG YUK PAN

DCCC 70/2024

[2024] HKDC 1905

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 70 OF 2024

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REASONS FOR SENTENCE

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1.  The defendant is convicted on his own plea and agreement to Summary of Facts to 7 charges of burglary, contrary to section 11(1)(b)  and 4 of the Theft Ordinance, Cap 210. Charge 8 is left on court file and not to be proceeded with without leave of the court.

Facts

2.  Between 4 July 2023 and 19 July 2023, the defendant committed 7 offences by entering restaurants knowingly without permission and stole the cash therein.  In some cases, he prised open the cabinet of the restaurants.  Total cash being stolen was around $154,814.  None of the stolen money was recovered.

3.  On all these 7 occasions, the defendant was captured by CCTV installed within the restaurant.  In some snapshots of the CCTV footages, he did not wear a face mask, and in other snapshots, he wore a face mask. 

4.  The defendant identified himself in all these CCTV footages. 

5.  The defendant was arrested on 24 July 2023.  In video-recorded interviews, under caution, he admitted that he had spent all stolen money to repay his debts and he had previously worked as a manager/waiter in 4 of these 7 restaurants (ie Charges 1, 3, 4 and 6).

Criminal Record

6.  The defendant has 2 previous criminal records involving convictions of 5 theft charges between 31 March 2021 and 8 November 2023.

Mitigation

7.  The defendant is aged 28.  He has one daughter aged 4.  He had no contact with his parents or his wife for some time.  His wife deserted the family in 2021. 

8.  It was said that the defendant used to be a partner in a Japanese restaurant until it closed at the time of COVID-19.  He then worked for several restaurants and also worked as delivery workers in his spare time to earn more money for the family.  His wife disappeared in 2021, owing a lot of money.  The debt collectors came into the home to chase repayment of the debt, and they harassed the defendant by all means.  It was said that the defendant had tried very best to repay the debts, and he had used the money stolen to repay the debts borrowed by his wife.

9.  It was said also that the defendant now has a girlfriend and that he had maintained relationship with her even after the arrest.  Since his arrest on 24 July 2023, as he could not look after his daughter, he had signed a declaration waiving his right to the custody of the daughter. 

10.  It was said that he is now deeply remorseful and that he has fully co-operated with the authorities on his arrest.  It was also said that the defendant has learnt a lesson and he hoped to start afresh after the discharge from prison.

11.  Defence counsel urged this court to consider the totality principle and to impose a lenient total sentence in view that all offences took place within the same month, ie July 2023.

12.  Defence counsel also lodged with the court the mitigation letters from the defendant as well as his girlfriend and several legal authorities.

Discussion

13.  Before sentencing, this court has carefully considered all that was said on behalf of the defendant including the mitigating letters. 

14.  In the antecedent statement dated 2 August 2024, the defendant said his mother lived apart from him and was a salesperson.  In court, defence counsel confirmed the accuracy of contents of the antecedent statement.  In the mitigation submission dated 5 November 2024, defence counsel said the defendant had no contact with his parents for long time.  He adopted the submission in court.  The defendant in his mitigation letter, however, said that his mother has died.  At the hearing on 11 November 2024, this court asked defence counsel to clarify this point, defence counsel after taking instructions from the defendant, said defendant’s mother had in fact passed away.  This court has therefore reservation to accept in full what the defendant said in his mitigation letter.

15.  It is well established that the appropriate sentencing starting point for burglary of non-domestic premises in the absence of aggravating or extremely strong mitigating factors is that of 2½ years’ imprisonment.  (HKSAR v Sim Ka Wing, CACC 450/2000)

16.  The defendant here acted alone.  On 3 occasions, he prised open the cabinet within the restaurant and took the cash from within. 

17.  For Charges 3, 4 and 6, the defendant had gained entry by hiding himself in the toilet within the restaurant and waited until close of business before he came out and committed the offences. 

18.  For Charges 1, 3, 4 and 6, the defendant had previously worked within these restaurants either as a manager or as a waiter, he must have gained knowledge of how one could get entry into those premises.

19.  These burglaries are definitely not opportunistic ones as they all involved certain degree of planning and in commission of 3 offences, there was prising open of the cabinets, simple tools must have been used.  It is noted, however, that as the burglary was committed after business hours, no one was expected to be within the restaurant at the time.

20.  Total loss to the victims’ restaurants were $154,814.

21.  The defendant had 5 theft convictions in the past, the last one in November 2023.  No doubt he is a persistent offender involving dishonesty.  He also had committed these offences whilst he had jumped police bail for another offence.  It is clear that despite the sentence on him for the previous convictions, the defendant has not learnt his lesson but has reoffended. Though these previous offences are not burglary offences, they are similar in the sense that they all involved dishonesty.

22.  These two factors amount to aggravating feature in sentencing, and the sentencing starting point is enhanced by 3 months on each of these factors to a total of 6 months to the sentencing starting point, bringing it to 3 years’ imprisonment.

23.  Having considered the circumstances of the case and all that was said on behalf of the defendant, the most valid mitigating factor is that of the defendant’s guilty plea, for which he is entitled to full one-third sentencing discount. 

24.  In fact, it is noted that the defendant was caught on CCTV footages in all the 7 restaurants, and on some occasions he did not even wear a mask.  He could therefore be easily recognized, especially by those former fellow staff, and the chance of him successfully avoiding legal consequence of the offences was slim.

25.  The defendant is therefore sentenced to 24 months’ imprisonment for each charge.

26.  The defendant committed the 7 offences between 4 July and 19 July, ie over 16 days.  On 5 July, he committed 2 offences.  It appears that he had no regard for the law.  Obviously, the repeated commission by the defendant of these offences added to his culpability.

27.  Considering the totality principle and the defendant’s overall culpability in this case, this court finds that a total sentence of 36 months’ imprisonment just and proportionate.  Accordingly, 2 months’ sentence in each of the Charges 2, 3, 4, 5, 6 and 7 is to run consecutive to the sentence in Charge 1, the rest to run concurrently.

28.  The defendant is therefore sentenced to a total of 36 months’ imprisonment.