HKSAR v. HO SAI FAAT

DCCC 430/2015

CRIMINAL CASE NO 430 OF 2015

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REASONS FOR SENTENCE

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Introduction

1.  On 1 February 2016, the defendant appeared in this court and pleaded guilty to one charge of burglary, preferred against him under section 11(1)(b) and (4) of the Theft Ordinance, Cap 210 (Charge 1) and two charges of failing to surrender to custody without reasonable cause, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221 (Charges 2 and 3).

Facts

2.  Between August 2014 and early March 2015, the defendant has been an employee of a restaurant at Ground Floor, No.19 Yee On Street, Kwun Tong, Kowloon, Hong Kong.  In that capacity, he was provided with the key to open the gate of the restaurant and the password with which to operate its cash register.  Subsequent to his dismissal in early March 2015 due to absenteeism, he returned to the restaurant in the early hours of 9 March 2015, opened the gate with the key, unlocked the cash register with the password, stole from it $2,000, and took away two Samsung tablet computers valued at around $4,000. The CCTV system installed at the restaurant captured his built and outfits.  On 31 March 2015, the police arrested him at his residence and seized the key in question and the clothes he had worn on the date of the offence.  Under caution, he admitted to the offence of burglary, saying he needed money to repay a debt. (Charge 1)

3.  The defendant was charged to appear before a magistrate on 2 June 2015; on that occasion he was put on court bail to answer the charge before the District Court on 23 June 2015.  He failed to appear at the District Court as appointed; a warrant for his arrest was issued.  (Charge 2)  The police executed the warrant and arrested him at I-One Cyber Centre, No.63A, Ting On Street, Sau Mau Ping, Kowloon.  Under caution, he said he absconded because he was worried about going to court.  He was next brought before the court on 30 June 2015 and was admitted to bail again, which was subsequently extended on 28 July 2015 on condition that he must enter an appearance at the District Court to answer the charge on 21 August 2015.  He failed again to appear at the District Court that day; another arrest warrant was issued against him.  (Charge 3)  On 9 December 2015, he surrendered himself to the police, explaining under caution that he absconded as he was afraid of being sent to prison.   

Mitigation

4.  The defendant was born on the mainland (as confirmed by the defence) in September 1993 and is now 22 years old.  He has received education up to Form Two level and has, since leaving school in 2008, worked as a waiter and a construction worker.  He lives with his mother, a cleaning lady by occupation, and his elder brother, who is still studying.  The defendant’s elder sister is married; she lives elsewhere.  In October 2011, the defendant was convicted of loitering for which he was sentenced to detention in a rehabilitation centre.

5.  In his plea in mitigation, Mr William Leung, solicitor appearing for the defendant, submits that the defendant has overspent himself on entertainment on the mainland and has been intimidated by loan-shark from whom he had borrowed money, and that he committed the first charge in order to settle the loan repayment.  Mr Leung submits that the defendant has been overcome by a sudden, momentary greed; the offence in the first charge was not premeditated; no violence and weapons have been used in its commission; and there has been minimal ransacking in the restaurant. 

6.  Mr Leung relies on a letter provided by Ms Lucinda Leung, the registered social worker who has been handling the defendant’s case since 2013.  In that letter, Ms Leung stresses that the defendant comes from a broken family, his mother having single-handedly raised the three children, the defendant being the youngest of them.  Ms Leung observes that the defendant is a passive person, but he gets along well with his colleagues at work.  It was, says Ms Leung, when the defendant was thinking about surrendering himself to the police that he contacted her again.  Ms Leung is of the view that the defendant has learned a hard lesson and has determined to turn over a new leaf. 

7.  Finally, Mr Leung hands up to court a letter of the defendant’s mother. She describes the defendant as kind-hearted and dedicated to his work, and she expresses willingness to compensate the restaurant for their losses.

8.  According to the defendant’s background report, the defendant was two years old when his father passed away.  After completion of his Primary Three studies on the mainland, the defendant came to live in Hong Kong, only to find himself having to recommence his schooling from Primary Two.  He failed to catch up with the Hong Kong curriculum, however, and lost interest in his studies.  His school conduct was far from satisfactory at the secondary level: he started smoking and drinking; and he mingled with triad peers.  In the end, he left school without completing Form Two.  

9.  As to the offence in the first charge, the defendant explained to the probation officer who compiled his background report that he and his ex-schoolmates had engaged themselves in fun-seeking merriments in Shenzhen and Tsimshatsui for which he was landed with bills ranging from about $4,000 to $10,000 every time.  He did not have the money to support that level of spending, so he applied for and was granted loans to the tune of several ten-thousand dollars from two finance companies.  He committed the offence in the first charge when he was unable to make repayment of the debts.

10.  According to the probation officer, the defendant enjoys a good relationship with his mother who is disappointed with him for transgressing the law.  The defendant’s mother considers him filial and good-natured and confirms that he has been making regular contributions towards household spending; she asks the court to pass a lenient sentence on him.

Reasons for sentence

11.  There is force in Mr Leung’s submissions in mitigation that the offence was not premeditated; the defendant has acted under some degree of compulsion; and the restaurant was not, so to speak, ransacked.  In the court’s view, however, the defendant has been entrusted with the key and the password by reason of his status as the restaurant’s employee only.  Subsequent to the termination of his employment, the possession by him of the key and knowledge of the password must rest entirely on the basis of a continuing trust; he has no business whatsoever in abusing that trust to the prejudice or disadvantage of the restaurant.  In addition, the value of the items stolen by the defendant cannot be described as negligible.

12.  On balance, there is insufficient justification to depart from the usual tariff of two and a half years’ imprisonment for burglary offences committed in non-domestic premises.  In all the circumstances, in respect of the first charge, an appropriate starting point is one of 30 months’ imprisonment.  The defendant is entitled to one-third discount for his guilty plea and is sentenced to 20 months’ imprisonment for this charge.  Not a lot of weight can be attached to the wish of the defendant’s family to compensate the restaurant: laudable as the mother’s intention clearly is, to be relevant as a mitigating factor, compensation should come from the defendant’s own efforts and resources.

13.  As to the second and third charges, the appropriate starting point is one of six months’ imprisonment, which is reduced to four months on account of the defendant’s pleas, resulting in four months’ imprisonment each.  In the circumstances of this case, the court agrees with Mr Leung that the two sentences should run concurrently.

14.  Having regard to the principle of totality and, in particular, to the fact that the defendant has in the end surrendered himself to the police, it is ordered that two months of the concurrent sentence with respect to Charges 2 and 3 be served consecutively to the 20-month sentence for Charge 1, making a final sentence of 22 months’ imprisonment. 

Conclusion

15.  For the offences in the three charges of which he stands convicted, the defendant is sentenced to a term of imprisonment of 22 months’.