HKSAR v. CHEUNG PING CHUNG

DCCC 997/2021

[2022] HKDC 1335

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 997 OF 2021

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REASONS FOR SENTENCE

1.  The defendant pleaded guilty to 2 charges of "Burglary". He burgled a restaurant and a laundry shop, both situated at street level. The offences took place 5 days apart.

Summary of Facts

Charge 1

2.  The burgled premises were a restaurant situated at Ground Floor, No.16A Man Yuen Street, Yau Ma Tei ("the Restaurant").

3.  Around 5:00 p.m. on 11 July 2021, Madam Cheung (PW1), owner of the Restaurant, returned to the premises to do some work.  The Restaurant was closed for business on that day.  PW1 placed her handbag on the bar counter and went to the kitchen.  When she came out, she found her handbag missing.  PW1's handbag (valued at $500)  contained $8,000 cash, a Hong Kong Identity Card, a Home Visit Card, a resident card and 2 rings (valued at $20,000).

4.  CCTV footage captured a male in purple shirt, blue jeans and black sneakers carrying a blue backpack entering the Restaurant at 5:12 p.m. on that day.  He took PW1's handbag, put it in his backpack and left.

5.  On 13 July 2021, the Police found PW1's handbag near a fruit stall in Yau Ma Tei.  Only the cash was missing.

Charge 2

6.  The burgled premises were a laundry shop situated at Ground Floor, No.15 Cliff Road, Yau Ma Tei ("the Shop").

7.  Around 2:40 p.m. on 16 July 2021, Madam So (PW2), owner of the Shop, stepped away from the front counter and went to the back alley.  The Shop was open for business at that time.  About 5 minutes later, from the back alley, PW2 saw a male leaving the Shop.  He was in a purple shirt and blue jeans carrying a dark-coloured backpack.  PW2 found her white box, which contained $1,500 cash, missing from the front counter.  She saw the male leaving with her white box.  She gave chase but was unsuccessful in catching him.

8.  CCTV footage captured the male walking past No.1A Cliff Road holding a white box in his hand.

Arrest and admissions

9.  The defendant was arrested by the Police in his rented room at a guesthouse in Mongkok on 17 July 2021.  Under caution, he admitted having burgled the Restaurant and the Shop.  A purple shirt, 2 pairs of blue jeans and a blue backpack were found in his room.  They match the clothing worn by both culprits captured in the CCTV footage.  In his video recorded interviews, the defendant admitted having committed both burglaries and offered further details regarding both offences.

Mitigation & Sentence

10. The defendant recently turned 60. He has 16 conviction records, which included 14 "Theft" offences and 16 "Burglary" offences. Defence counsel Mr. McCoy informed me that the defendant is married with 2 sons (aged 24 and 17). Prior to his arrest, he was a casual worker earning about $15,000 per month.

11. In mitigation, Mr. McCoy submitted that the door of the Restaurant was open and the Shop was of an open setting. Relevant photographs were placed before me. I accept Mr. McCoy's descriptions. Mr. McCoy stressed that no breaking in was involved in either incident and no tools were used by the defendant; he simply walked into the premises.

12. Since both burglaries were committed during the pandemic, I have asked prosecuting counsel Mr. Wong if the culprits depicted in the CCTV footage were wearing a mask. Mr. Wong confirmed to be so. Mr. Wong also fairly confirmed that but for the defendant's own admissions, there would be insufficient evidence to support either charge.

13. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. The defendant is no stranger to "Burglary" and "Theft" offences, which is an aggravating factor. Committing 2 burglaries within 5 days is also an aggravating factor[1]. On this basis, I would increase the starting point of each charge to 3 years' imprisonment.

14. I am aware that the evidence against the defendant in this case came primarily from his own admissions. I accept that this is to his credit[2]. Hence, I reduce the starting point for each charge to 33 months. Apart from this, I see no other mitigating factors which warrant any further reduction. With his timely guilty pleas, I sentence the defendant to 22 months' imprisonment for each charge.

15. Bearing in mind the totality principle, I consider a global starting point of 3 years just and appropriate for both charges. With the timely guilty pleas, the overall sentence is reduced to 2 years. Hence, I order 2 months in Charge 2 to run consecutive to Charge 1.

16. The defendant committed his first offence in the mid-1980s at the age of 21. He has been in trouble with the law in each decade since. The court can only do so much in deterring a recidivist by way of a heavy penalty. Whilst the sentence must carry a deterrent effect, it cannot go out of proportion. To live a law-abiding life with dignity or to continue being a criminal is a matter entirely for him.