HKSAR v. CHEUNG KIN MAN

DCCC 807/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 807 OF 2012

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Reasons for Sentence

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Charge and facts

1. The defendant pleads guilty to the burglary of a restaurant located at Ground Floor, No. 170 Tai Hong Wai, Kam Tin, Yuen Long. 

2. The proprietor kept about $3,175 cash overnight in the till whose lock had been broken beforehand.  He left after locking the glass door of the main entrance.  At 10:00 a.m. he returned only to find $250 cash remaining in the till.  The CCTV recording captured the image of a male walking towards the restaurant at 3:57 a.m. and away at 4:02 a.m. 

3. He reported the case to the police.  As he recognized the male to be the resident of an elderly care home in the vicinity, he led the police to arrest the defendant for burglary.  Under caution, the defendant admitted entering the restaurant through an unlocked door to take $2,300 from the till.  The $2,187.20 the police found in his trouser pocket was the remainder of the stolen money.

Personal background and mitigation put forward

4. He is now 52 years of age, F.3 education level.  He has a clear record.  At the time of arrest, he was unemployed.  He lived on public assistance.  He has been a mental patient for 29 years.  From 1984 to 2006, he received in-patient treatment in Castle Peak Mental Hospital.  He committed the present offence out of momentary greed.    

5. His solicitor submits that there was no prior planning.  No tools, prising or damage featured in the present case.  I agree that a stay of 5 minutes in the premises reflects opportunism.   

Sentencing principles

6. In A.G. v. Lui Kam-chi [1993] 1 HKC 215, the Court of Appeal states that the proper starting point for non-domestic premises shall be 2 ½ years’ imprisonment for a first offender of full age.

7. In HKSAR v Sim Ka-wing, CACC450/2000, Keith JA explains what is included in the starting point for burglary 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.

8. The sentence was reduced from 20 months to 12 months on a plea, reflecting a notional starting point of 18 months.  The same computation was adopted by the Court of Appeal in HKSAR v. Cheung To Ming [2006] 2 HKLRD 259.  

Sentencing this defendant

9. I take a starting point of 18 months.  I reduce it by one-third for his plea of guilty. There are no other mitigating factors.  The sentence is 12 months.