HKSAR v. WUN PIK CHUN

DCCC 919/2020

[2021] HKDC 456

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 919 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to two charges of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

2.  Full details of the offences are set out in the facts admitted by the defendant.  In summary, this is a burglary case which took place in one non-domestic premises ie Ching Long Shopping Centre (hereinafter called “the Market”).  The defendant on two different days entered the Market and stole about 2 kg of shrimps on one occasion, and 8 crabs, 44 shrimps and 7 lobsters on another occasion.

3.  There were a total of 48 stores in the Market. The stores however had no doors or gates installed at their entrances.

4.  “Golden Sea Seafood” was situated at store No M23 in the Market (hereinafter called “the Seafood Store”).  The Seafood Store sold seafood.  It operated daily from 0700 to 1930 hours.  Various seafood was kept inside fish tanks placed in the Seafood Store.  After its business hours, the staff placed styrofoam boards over the fish tanks to cover the fish tanks.

Offence 1

5.  On 3 Sept 2019 the Seafood Store operated as usual.  Amongst other seafood, shrimps were sold on that day which were kept inside a fish tank placed in the store.  The store closed at 1930 hours. Before it was closed, the staff had checked that there were shrimps remaining inside the fish tank.  The staff placed styrofoam board over the fish tank containing the shrimps and then left the Seafood Store.

6.  When the staff returned to the Seafood Store in the morning on 4 Sept 2019, he found that a certain number of shrimps were missing from the fish tank.  He estimated that about 2 kg of shrimps were missing.  The incident was reported to the police.

7.  Police officers reviewed relevant CCTV footages.  It was found that at 2310 hrs on 3 Sept 2019 the defendant came to the Seafood Store and took away certain number of shrimps from a fish tank placed in the Seafood Store.

Offence 2

8.  On 29 Sept 2019 the Seafood Store operated as usual.  Shrimps, crabs and lobsters, etc were sold on that day which were kept inside various fish tanks placed in the store.  The store closed at 1930 hours.  Before the store closed, the staff placed styrofoam boards over the fish tanks and then left the Seafood Store.

9.  The security guard of the Market was on duty from 1900 hours on 29 Sept 2019 to 0700 hours on 30 Sept 2019.  At about 2153 hours on 29 Sept 2019, through the CCTV he saw the defendant entered the Market via the Delivery Entrance.

10.  After the defendant had entered the Market via the Delivery Entrance, she went straight to the Seafood Store.  When the defendant arrived at the Seafood Store, the defendant took the styrofoam boards away and took certain seafood out from the fish tanks.  The security guard immediately came to the Seafood Store and intercepted the defendant there. Report was made to the police.

11.  The defendant was arrested and under caution, the defendant admitted that she had stolen seafood from the Seafood Stall for self-consumption.  The defendant was then carrying a green bag and upon search of the bag, 8 crabs, 44 shrimps and 7 lobsters were found inside the bag.

Criminal records and background of the defendant

12.  The defendant is now 34 years old, she is educated to Form 4 level.  She was a salesperson earning approximately HK$14,000 per month before she was remanded.  She lives with her widowed mother and elder brother in a public housing unit.  Her father died in 2003 when she was only 16 years old.  Her mother works as a cleaning worker and her brother is also a salesperson.  She used to give HK$5,000 to HK$6,000 to her mother for household expenses.  

13.  She got married in 2007 when she was 20 years old and divorced after 8 years in 2015.  She gave birth to two children who are currently 12 and 14 years old in this marriage.

14.  The children are living with her ex-husband and she visited them regularly.  She contributed HK$3,000 to HK$4,000 to her children’s maintenance per month. 

15.  She had 7 criminal records. I was told that amongst the records, the conviction of theft and obtaining property by deception were recorded after the offence dates of the current case, and she was sentenced on 26 June 2020 and she has already served the sentences.

16.  Ms Siu asked me not to treat her previous conviction as aggravation factor.

Mitigation

17.  In mitigation, Ms Siu emphasized the fact that the defendant had pleaded guilty to the offence at the earliest opportunity and is entitled to the full one-third discount.

18.  Ms Siu pointed out that the offences happened in a wet market and the victim company is a seafood store with opening hours from 7 am to 7:30 pm.  The first offence happened at around 11:10 pm on 3 September 2019, after the wet market was closed.  The defendant took the delivery entrance which was not locked to enter the Market and stole the shrimps.

19.  Ms Siu also pointed out that the second offence happened at around 9:53 pm on 29 September 2019 and the defendant entered the market via the unlocked delivery entrance in a similar way after the Market was closed, and stole the seafood.

20.  Ms Siu stated that the defendant wishes to inform the Court that she only committed these offences because she had limited income, and could not afford expensive food like seafood in this case.  At the time of the offences, she was working in a shop nearby the Market, she walked pass the Market and saw the unlocked delivery entrance and took the opportunity to steal the food for self-consumption.

21.  Ms Siu relied on the authority of The Queen v Wong Man［1993］ 1 HKC 80 & Attorney General v Lui Kam Chi［1993］ 1 HKC 215, and submitted that according to the guideline stated by the Court of Appeal, for adult offender, if it is a burglary in a non-domestic premises, without any aggravating or mitigating factors, the proper starting point is 30 months of imprisonment.

22.  She further submitted that in HKSAR v Cheng Wai Kai, unreported, CACC 338 & 339/2007, the Court of Appeal has listed out the examples of aggravating factors which include:-

(1)  the offence is carefully planned and skillfully 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.

23.  Ms Siu stressed that in the current case, the defendant did not use any tools or equipment to break open the entrance, she took advantage of an unlocked delivery entrance to enter the Market and she is only an opportunist, and she committed the offence by herself.

24.  Ms Siu also pointed out that the premises is a wet market in which usually there are no high value goods, and the defendant stole some seafood for self-consumption and she admitted to the Police that she ate those stolen goods.

25.  Ms Siu submitted that although the defendant is not a first offender but she did not have similar records, and Ms Siu urged the Court to accept that this case is not a very serious one amongst this type of offence. 

26.  According to the Prosecution witnesses, the seafood stolen was worth about HK$1,820 in total.  Ms Siu stated that the defendant is remorseful and is willing to compensate the victim company’s loss.

27.  Ms Siu urged the Court to consider the above cases and adopt 30 months as the starting point of the offences.  She suggested that although the offences happened on two dates, taking into account of the totality principle, the nature and the value of the stolen property, she invited the Court to consider a concurrent sentence. 

Sentencing considerations

28.  As rightly pointed out by Ms Siu in mitigation, the correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2½ years’ imprisonment.

29.  I consider that a starting point of 2½ years’ imprisonment is appropriate in the present case for each offence.  One-third discount is given to the defendant as she indicated her guilty plea at the earliest opportunity.  The sentence is therefore reduced to 20 months’ imprisonment to each offence.

30.  Taking into account of the totality principle, I order that 4 months of 2^nd charge to be run consecutively to 1^st charge.

31.  Since the defendant had made the compensate to the victim for his loss, I will give her a reduction of 1 month imprisonment.

32.  Apart from the above, there being no further valid mitigating factors justifying further reduction in sentence, as such, the total sentence imposed on the defendant for both charges she pleaded guilty to is one of 23 months’ imprisonment.