HKSAR v. CHENG CHUNG HO

DCCC 168/2019

[2020] HKDC 289

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 168 OF 2019

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REASONS FOR SENTENCE

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1.  D2 Cheng Chung Ho pleaded guilty to one charge (Charge 1) of Burglary contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210; and one charge (Charge 2) of Conspiracy to steal, contrary to section 9 of the Theft Ordinance, Cap 210, and sections 159A and 159C of the Crimes Ordinance, Cap 200.

2.  The particulars of Charge 1 are that D2, together with D1 and D3 (who are not before the court), on or about 24 June 2018, in Hong Kong, having entered as trespassers part of a building known as Ever Finance Limited, Room 2610, 26^th Floor, Golden Era Plaza, No 39 Sai Yee Street, Mong Kok, Kowloon, stole therein two “Lenovo” desktop computers, 5 computer chops, one receipt book, one cheque book, one safe key, one UnionPay card, one black mobile phone, one account advice, one security device for e-banking, one “FENDI” bag, one letter with Pin number, one letter, some company salary records, some bank statements and one cheque copy.

3.  The particulars of the Charge 2 are that D2 and D1 (the latter is not before the court), on or about 24 June 2018, in Hong Kong, conspired together to steal from a bank account numbered 027-565-02051055 held by Ever Finance Limited with Bank of Communications (Hong Kong) Limited.

Admitted facts

4.  The facts admitted by D2 may be summarized as follows.

5.  Ho Wai Po (male, aged 33) (“PW1”) was a manager of a company known as “Ever Finance Limited” (the “Company”) situated at Room 2610, 26/F, Golden Era Plaza, No 39 Sai Yee Street, Mong Kok, Kowloon, Hong Kong (“Room 2610”).  At around 8:00 pm on 22 June 2018, PW1 checked correct Room 2610, and then secured the locks before leaving it.

6.  At around 11:35 pm on 24 June 2018, police officers spotted a male (hereinafter referred to as D3) knocking on the door of a hotel room, and then a person opened the said door from inside.  After that, the police officers identified themselves, and entered the said hotel room together with D3.  At the material time, 2 males (later known as D1 and D2 respectively) and 2 females were inside the said hotel room.

7.  Thereafter, upon search of the said hotel room in the presence of the D1-3, the following items were, among others, found:-

(a) Two “Lenovo” desktop computers (collectively as “SP1”);

(b) Five company chops (“SP2”);

(c) Some company documents, including a receipt book, an account advice, a letter, some company salary records, some bank statements, and a copy of cheque (collectively as “SP3”);

(d) A cheque book (“SP4”) for the Company’s current account in Bank of Communications (Hong Kong) Limited (A/C No.: 027-565-02051055);

(e) A black mobile phone (“SP5”);

(f) A security device for e-Banking (“SP6”);

(g) A Dah Sing Bank UnionPay Card (A/C No.: 622489 79888 599112, together with a letter with the PIN number (collectively as “SP7”);

(h) A safe key (“SP8”); and

(i) A “Fendi” bag (“SP9”).

8.  At around 1:15 am on 25 June 2018, upon notification by the police, PW1 returned to Room 2610, and found that the upper mechanical lock of the main door was unlocked.  Upon checking, PW1 found that SP1 – 9 were, among others, missing from Room 2610, and confirmed that SP1 – 6 & 8 belonged to the Company, while SP7 & 9 belonged to him.  [Charge 1, Burglary]

9.  Some pages of the cheque book (ie SP4), were found to be stamped and signed. Later, PW1 confirmed that the said pages were not signed and/or stamped by the Company.  [Charge 2, Conspiracy to Steal]

10.  D2 was arrested in the said hotel room on 25 June 2018 at 0345 hours.  Under caution, D2 stated, inter alia, that he only went there to take away a computer, with the intent to check if he could gain money with the data contained therein.

11.  In D2’s video-recorded interviews, under caution, D2 stated, inter alia, that on 24 June 2018, D1 led him to Room 2610, and each of them took away a “Lenovo” desktop computer from the Company.  Afterwards, D1 passed some company chops and a cheque book to him, and asked if they could make money from those items.  Then, he stamped and signed on the cheques, with the intent to use the cheques for withdrawing money.  Subsequently, he tried to deposit a cheque into the bank account of a stolen Dah Sing bank card, but it was not successful, as he input the wrong PIN number.

12.  The CCTV footage of Golden Era Plaza revealed, inter alia, that on 24 June 2018, a male who resembled D1, and another unknown male moved repeatedly between Room 2608 (ie D1’s tattoo shop) and the corridor leading to Room 2610.  Moreover, a male who resembled D3 in appearance, walked to the lift lobby at 26/F, and then wandered around over there.

13.  The CCTV footage and relevant bank records of Dah Sing Bank revealed that a male who resembled D2 in appearance, attempted to deposit a cheque.

14.  According to the result of DNA examination, a mixture from at least three DNA sources was found on the outer surface and the zip tag of the “Fendi” bag (ie SP9), and the likelihood ratio of D1 being one of the sources was calculated to be approximately 2,840 to one which means there is strong evidence to support the proposition that D1 and two unknown local Chinese persons were the contributors.

15.  According to the fingerprint examination reports, a total of 108 nos of fingerprints were found on the stolen property, including 5 fingerprints of D1, 22 fingerprints of D2, and 2 fingerprints of D3.

16.  In particular, two of D1’s fingerprints were found on page 9 (with company chop) of the cheque book of the Company (ie SP4), two of D1’s fingerprints were found on the cover page of a receipt book of the Company (ie part of SP3), and one of D1’s fingerprints was found on a letter issued to the Company (ie part of SP3).

17.  On the other hand, D3’s fingerprint was found on the cover page of a receipt book of the Company (ie part of SP3), and his fingerprint was also found on a bank statement issued to the Company (ie part of SP3).

Criminal record

18.  The agreed criminal record shows that D2 has accumulated 13 previous convictions through 7 court appearances.  Of those 13 convictions, 3 were offences of dishonesty, one was for going equipped for stealing, and 2 were for possession of false instrument(s).  His last conviction was in 2013 for “Handling stolen goods”.

Antecedents

19.  The agreed antecedents statement shows D2 to be aged 44 (42 at the time of the offences), educated to F4, unemployed.  He lives with his family in public housing in Wong Tai Sin.

Mitigation

20.  Ms Joes Fung of counsel mitigated on behalf of D2.

21.  The following is a summary of the mitigation submissions.

22.  D2 is single, lives with his mother (70 or so).  D2 has 3 elder sisters and one elder brother who are all married and living apart.  He used to work as a construction worker and an odd-job warehouseman, earning an average monthly salary of about $13,000 to $14,000 from which he contributed about $3,000 to the household expenses.

23.  Out of greed and financial difficulty, D2 committed the present offences.  Although he has previous convictions, no burglary has been committed prior to the present case.

24.  Charge 1 is a non-domestic burglary.  D2 did not carry heavy tools and equipment to facilitate entry.  No one was injured and no damage was caused to the premises.  There was no massive loss.  D2 was cooperative with the Police.

25.  D2 pleaded guilty thus saved court’s time.  D2 has brought harm and disrepute to his family members.  D2 undertakes not to reoffend and asks for a chance to rehabilitate and devote himself to society.

26.  Ms Fung submitted the guidelines and principles set forth in R v Wong Man [1993] 1 HKC 80 are applicable to this case; there, the Court of Appeal suggested a starting point of 30 months for non-domestic burglary for a first offender of full age where there are no exacerbating and mitigating factors. Ms Fung asked for concurrent sentences having regard to totality due to proximity of time and that both charges are closely linked with each other.

27.  Ms Fung submitted the District Court sentencing case of HKSAR v Jing Yueli, DCCC 1123/2018, [2019] HKDC 1197, a case of Conspiracy to steal, and suggested that I adopt the same starting point ie 18 months’ imprisonment for Charge 2 here.

28.  Against the aggravating factor of D2 acting with others in Charge 1, Ms Fung had no submission to make; against the aggravating factor of D2 having previous similar convictions, Ms Fung submitted that D2 has not committed any offence since 2013 until now.

Sentence

29.  I have considered the mitigation submissions.

30.  I note that the case of Jing Yueli cited by Ms Fung is no more than a previous instance of how another defendant on different facts has been dealt with by a sentencing court and is not binding on me in any event.

31.  Burglary of non-domestic premises is a serious offence.

32.  The usual sentence without aggravating or mitigating factors is a term of 2½ years imprisonment.

33.  For the dual aggravating factors of acting in concert with others and being a persistent offender of similar offences, I will add 4 months to the starting point.  For the fact that all the stolen goods subject of the burglary charge have been recovered (and that no loss suffered by the PW1 could be directly attributable to D2), I subtract one month from the starting point. The resulting sentence before plea is therefore 2 years and 9 months’ imprisonment.

34.  For the offence of Conspiracy to steal, there is no tariff or usual sentence.  There appears to have been no loss resulting from this offence. Taking all matters into account, I adopt a starting point of 15 months’ imprisonment.

35.  D2 has indicated his pleas of guilty early which he has materialized. He is therefore entitled to a 1/3 discount.  There are no other mitigating factors that could earn him any further discount.

36.  Although the Conspiracy to steal offence may not be said to be concomitant to the Burglary offence, it could not have been committed without the latter offence having been first committed.  Given they were committed at about the same time, I am content to impose concurrent sentences.

(D2 please stand)

37.  D2 will go to prison for 22 months for Charge 1; as for Charge 2, he will go to prison for 10 months.  The sentences will be served concurrently with each other.