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DCCC 224/2020
[2020] HKDC 731
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 224 OF 2020
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| Present: |
Mr Ken Ng, Counsel on fiat, for HKSAR |
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Ms Yap Ching Ching instructed by Messrs. Lo Chan & Leung assigned by the Director of Legal Aid for the defendant. |
| Offence: |
[1] Theft (盜竊罪) |
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[2] Burglary (入屋犯法罪) |
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REASONS FOR SENTENCE
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1. This is a case of an employee stealing money from the till of the restaurant where he worked on two separate occasions within a day – the money lost was about $17,000 in cash, not recovered.
2. The defendant, a 52-year-old man, pleaded guilty before me to two counts of offence; one of theft (charge 1) and the other burglary (charge 2).
3. The offences occurred on the same day (14 April 2019) at the same restaurant. Mr Lau together with his daughter operated a restaurant in Kam Tin, Yuen Long, and had hired the defendant to help at the restaurant for 15 years. The three of them each kept a key to the safe and to the cashier register as well. The exterior as well as the interior of the restaurant had surveillance cameras installed.
4. The restaurant was open between 6 a.m. and 6 p.m. On the day in question, the defendant stole money from the cashier register twice, about $10,000 the first time and $7,000 the second time, whose action was captured by the CCTV.
5. The first incident occurred at about 5:15 p.m. - the defendant was seen putting some cash from the cashier counter into a bag, and then went to the safe supposedly depositing the bag of money in it but instead he put in an empty bag. The defendant took the bag of money with him when he knocked off work later on. The money was estimated to be about $10,000. (Charge 1 - theft)
6. Later in the evening at about 10:20p.m., the defendant returned to the restaurant, opened the door with his key, went straight to the cashier counter, took away some money and then left. The whole incident lasted about 2 minutes. The money lost is $7,000 which is the petty cash usually kept for the business next day. (Charge 2 - burglary)
7. On the second occasion the defendant was indicted for burglary because he was not permitted to enter the restaurant at the close of business hours, he knew about the restriction and so when he entered, he would be a trespasser.
8. The matter came to light when the defendant failed to show up at work on the following day; consequently, a report was made to the police.
9. A few months later on 5 August 2019, police arrested the defendant at his home. He made a full confession to the police and told them that he had gambled away all the money.
10. The defendant is married but has been separated from his wife since 2018. He now lives with his mother (85) and one of his sisters. He was born in the Mainland and came to settle in Hong Kong at the age of 8. He has 4 prior convictions all relating to publishing and possession of obscene articles back in the mid-90s and he was sent to prison for a short time for the last offences.
11. In mitigation, the court heard that the defendant did two waiter jobs at two different restaurants earning a total monthly salary of around $19,000. He worked at Mr Lau’s restaurant from 6 a.m. to 6 p.m. and then started his night shift at another restaurant for 4 hours.
12. Counsel for the defendant, Miss Yap, told the court that he had been leading a debt-ridden life over the past 15 years – he had borrowed around $250,000 from Mr Lau, his employer, over the years and a larger part of his monthly salary was deducted to make repayments. The defendant reckoned that he had repaid Mr Lau close to double what he borrowed by now.
13. The reasons for running up his debts because he had been a habitual gambler. The truth was that his actual income was not always enough for him to spend; there were even periods during which the defendant had not received any monthly salary at all, and that explained why he needed to do two jobs. The long working hours had taken a heavy toll on the defendant, Miss Yap continued, coupling with his debt problems, the defendant was feeling very stressed and tired.
14. The employer of the defendant, Mr Lau, described by Miss Yap was rather mean in that the defendant had had a number of accidents at work; not only did Mr Lau not arrange any medical treatments for him but his sick leave was also denied.
15. It happened once that the defendant failed to turn up at work, Mr Lau came to his home making a scene there, Miss Yap said, “Mr Lau was only placated after the defendant’s elderly mother knelt on the floor and begged the employer, and the defendant agreed to kneel before his ancestral altar and admitted his wrongdoings.”
16. Over the years, the defendant was consistently refused medical leave from his work by his employer on the grounds of his indebtedness. As a result, he has been unable to seek treatment for his insomnia, anxiety and depression, Miss Yap said.
17. Miss Yap submitted that there are no aggravating factors in the case save breach of trust, and taking into account the considerations raised in Lo Kwok Hung CACC 82/2001, for example, lacking in similar records, co-operative with the police in their investigation, and oppression at the workplace etc., and the defendant’s special circumstances, a lower starting point should be adopted.
18. First of all, I think that the present case is nothing out of the ordinary, all his problems seemed to me arose out of his gambling addiction. The defendant has no one to blame but himself for ending up in a tight corner. The criticisms Miss Yap made against Mr Lau were all one-sided, it is hard to decide who is right or wrong without hearing the other side of the story.
19. What I agree with Miss Yap is when she said “there are no aggravating factors in the case save breach of trust”, and as such, I see no reasons to depart from the sentencing guidelines for the offence of burglary - i.e. in the absence of aggravating features the usual starting point for non-domestic burglary is one of 30 months.
20. Given the facts of the case, for the offence of burglary, I take 30 months as the starting point and for the offence of theft, 12 months. As it is also a case involving breach of trust, for that I add 3 months on top which brings the starting point for each offence to 33 months and 15 months respectively.
21. Insofar as mitigation is concerned, there isn’t anything of substance besides his timely guilty pleas which entitled him to a full one-third discount. Giving the appropriate discount, the starting point for each of the offence is reduced to 22 months and 10 months respectively.
22. Taking into account the totality principle, I order both terms to run concurrently with one another, the total term is one of 22 months imprisonment.
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