HKSAR v. CHENG KONG YIU

DCCC 293/2023 & DCCC 344/2024

(Heard Together)

[2024] HKDC 1197

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO DCCC 293 OF 2023

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REASONS FOR SENTENCE

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1.  The two cases of DCCC 293/2023 and DCCC 344/2024 involving the same defendant Mr Cheng are heard together before me.

2.  Under DCCC 293/2023, Mr Cheng pleaded guilty to one charge of Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap 210. Particulars are that he, on 7 December 2022, in Hong Kong, having entered as a trespasser part of a building known as “Mindfulness Chinese Medicine Clinic”, Shop No 321, 3^rd Floor, Lok Wah Shopping Centre, Lok Wah North Estate, No 70 Chun Wah Road, Sau Mau Ping, Kowloon, stole therein cash of $38,148 Hong Kong currency and one mobile phone.

3.  Under DCCC 344/2024, Mr Cheng pleaded guilty to one charge of Attempted Burglary, contrary to section 11(1)(a)  and (4)  of the Theft Ordinance, Cap 210, and sections 159G and 159J of the Crimes Ordinance, Cap 200.  Particulars are that he, on 30 January 2024, in Hong Kong, attempted to enter as a trespasser part of a building known as Ground Floor, No 88 Tung Ming Street, Sau Mau Ping, Kowloon, with intent to steal therein.

Facts admitted by Mr Cheng

Under DCCC 293/2023

4.  On 7 December 2022, at about 3:36 am, Mr Cheng was captured by CCTV to have entered the Mindfulness Chinese Medicine Clinic situated at Shop No 321, 3/F Lok Wah Shopping Centre, Sau Mau Ping, with a torch, while it was closed after business hours.  The footage included Mr Cheng prising open a drawer with some tools and taking some cash and a mobile phone therefrom before he left at about 3:41 am.

5.  When PW1 returned to the clinic to work at about 9 am the same day, it was found that the previously locked door was prised open; that cash of $38,148 and a mobile phone worth about $1,000 had been stolen from the drawer at the reception counter; and that a pair of yellow pliers was found at the reception counter.

6.  On 9 December 2022, at about 4:27 pm, police arrested Mr Cheng outside his residence in Lok Wah (South)  Estate for burglary.

7.  Upon search, cash of $13,490 was found in a bag that Mr Cheng was carrying.  Inside Mr Cheng’s residence, police found a pair of gloves, a torch, two screwdrivers and the stolen mobile phone.

Under DCCC 344/2024

8.  On 30 January 2024, between 6:09 am and 6:39 am, Mr Cheng was seen wandering around the area near the entrance to the office of District Councillor PW1 situated at Tung Ming Street, Sau Mau Ping (“the Office”). During this time when the Office was closed, Mr Cheng was seen using a torch to light up different places including the entrance and interior of the Office.

9.  When PW1’s wife PW2 returned to the Office, it was discovered that the door lock of the Office (valued at $1,000)  was damaged and left on the ground and that there was a scratch on the glass door.

10.  Only with the assistance of the police was PW2 able to enter the Office later on.  Nothing was stolen from the Office.  The repair of the glass door cost $1,000.

11.  Upon investigation, the police was able to locate Mr Cheng at the bus terminal of Lok Wah Estate in the evening of the same day.  Under caution, Mr Cheng revealed that:-

(a)  Earlier at about 6:10 am, he was near Tung Ming Street; when he saw the vacant Office, he tried to open the door lock with a pair of pliers and see if there was anything to steal therein; and

(b)  However, even though the lock was broken, he was unable to open the door so he left.

12.  The police arrested Mr Cheng for attempted burglary.  Under caution, Mr Cheng stated that he ran out of money and did what he had already admitted to earlier.

13.  Subsequently, the police was able to seize a pair of gloves, two torches, and the pliers used in the incident from Mr Cheng’s residence.

14.  Mr Cheng committed the present offence while he was on court bail for the offence in DCCC 293/2023.

Criminal record

15.  Mr Cheng has one previous conviction not similar recorded in 2002.

Antecedents

16.  Mr Cheng is aged 49 (47-48 at the time of the offences), educated to F3 secondary school level.  He worked in food delivery.  He is divorced and has a son aged 24.

Mitigation

17.  Ms Katy Chung of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Cheng.  The following is a summary of the mitigation submissions.

18.  The court is urged to consider the totality principle in dealing with the two cases faced by Mr Cheng: HKSAR v Lee Ming Yin [2011] HKCA 37.

19.  In DCCC 293/2023, Mr Cheng originally indicated a plea of not guilty, and trial dates were fixed.  Mr Cheng has indicated in advance of those dates that he will plead guilty after all.  He knows that he will not be entitled to the full 1/3 discount in sentence: HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.

20.  In DCCC 344/2024, Mr Cheng indicated his guilty plea at an early stage and is entitled to the usual sentencing discount.

21.  In DCCC 293/2023, the stolen property included a mobile phone.  It is acknowledged that theft of a mobile phone causes the owner tremendous inconvenience as mentioned in many cases: HKSAR v Liu Lin Feng, CACC 206/2011, and HKSAR v Chiu Suet Yee Angel, CACC 105/2010.

22.  Mr Cheng was going home after working for food delivery service that night.  He saw the clinic and because of greed, he decided to enter the clinic.  It is not the most meticulously planned burglary but Mr Cheng admitted he used a pair of pliers to prise open the drawer.

23.  In DCCC 344/2024, Mr Cheng also admitted he used a pair of pliers to try and open the door lock.  The District Councillor’s office was located near where Mr Cheng lived.  At the time of the offence, Mr Cheng was getting ready to pick up food delivery orders.  Out of greed, he tried unsuccessfully to enter the office.  He cooperated with the police when arrested later.

24.  Mr Cheng was a part-time food delivery worker for some restaurants.  His income was between $8,000 and $15,000 a month.

25.  Mr Cheng’s income fell since 2019.  He was in need of money, that was why he committed the offences.  Mr Cheng is remorseful.

26.  Mr Cheng’s father passed away in September 2023 and his mother is 92 years old.  Mr Cheng, his son and his elder brother took part in looking after her.

27.  The maximum penalty for a burglary or attempted burglary offence is 14 years’ imprisonment.

28.  For a burglary of non-domestic premises, the usual starting point for a first time offender is 2 years 6 months’ imprisonment: R v Wong Man [1993] 1 HKC 80.

29.  In HKSAR v Cheng Wai Kai, CACC 338/2007, at para 15, the Court of Appeal stated:

“15. The starting point can be adjusted upwards if there are aggravating circumstances such as[:] (1)  the offence is carefully planned and skilfully executed involving the use of heavy instrument or equipment; (2)  the offence is committed by two or more people; (3)  the offence targets at substantial premises and involves substantial properties; (4)  the offender is a professional burglar and not just an opportunist; (5)  the offender has previous convictions, particularly previous conviction of similar nature[;] and (6)  the offender commits multiple offences.”

30.  In HKSAR v Sim Ka Wing, CACC 450/2000, at para 9:

“9. The conventional starting-point of 2 ½ 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. In our opinion, the degree of planning and premeditation in this case was more (though not much more)  than normal, and justified a modest increase in the starting-point.”

31.  Pleading guilty would be Mr Cheng’s biggest mitigation.

32.  The two offences occurred in separate incidents, about one year apart, involving different victims.  The fact that the offences were committed repeatedly and Mr Cheng committed another offence while he was on bail could also be factors that the court considers.

33.  It is submitted that ordering the sentences to run wholly consecutively would be excessive.  It is submitted that the court may order the sentences to run partially concurrently: HKSAR v Leung Ting Fung & Anor [2014] HKCA 553.

34.  Mr Cheng has not committed any crime for more than 20 years.  He will go to prison for the first time for the present offences.  He has learned a hard lesson not to trespass against the law again.  Mr Cheng hopes for a relatively lenient sentence so he can resume looking after his mother.

Sentence

35.  A torch and a pair of pliers had been used in both of the subject incidents.  This shows a degree of planning or premeditation had gone into the preparation of the crimes.  I see no reason to depart from adopting the conventional starting point of 2 ½ years’ imprisonment for each charge.

36.  A mobile phone was included as part of the stolen property in DCCC 293/2023.  Fortunately, it was recovered after two days.  So the inconvenience and anxiety caused to the owner was only temporary.  Even so, I still find it justified to increase the starting point in DCCC 293/2023 by 2 months to 32 months to deter both Mr Cheng and like-minded people from targeting mobile phones as a subject property of theft.

37.  Mr Cheng committed the offence under DCCC 344/2024 whilst on court bail for the case of DCCC 293/2023.  For this reason, the starting point for the charge in DCCC 344/2024 is increased by 3 months to 33 months.  I will not further enhance on reason that this is Mr Cheng’s commission of a second offence of the same kind.

38.  To the charge under DCCC 293/2023, Mr Cheng did not indicate his guilty plea at the first opportunity, resulting in trial dates being fixed.  He is not entitled to the full 1/3 sentencing discount.  Having considered the whole circumstances including the fact that the change in indication came more than one month before the trial dates, I will grant him 25% sentencing discount.

39.  To the charge under DCCC 344/2024, Mr Cheng pleaded guilty in good time.  He shall be entitled to the customary 1/3 sentencing discount.

40.  I can see no other mitigating factors of weight to justify another reduction in sentence.

41.  The offences were separate and distinct and relate to different premises; they were committed more than one year apart.  In principle, the sentences appurtenant thereto ought to be served wholly consecutively.

42.  However, I will apply the principle of totality before passing the aggregate sentence on Mr Cheng for both cases.

(Mr Cheng, please stand)

43.  Under DCCC 293/2023, the sentence is 24 months’ imprisonment.

44.  Under DCCC 344/2024, the sentence is 22 months’ imprisonment.

45.  I order that 6 months of the sentence in DCCC 344/2024 to run consecutively to the sentence in DCCC 293/2023.