HKSAR v. CHU YUET-MAN

DCCC 71/2021

[2021] HKDC 679

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 71 OF 2021

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REASONS FOR SENTENCE

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The defendant pleaded guilty to 2 charges of "Burglary" (Charges 1 and 2) and 1 charge of "Criminal damage" (Charge 3). He burgled the same grocery store twice within 2 days. He also broke the window of a vacant village house.

Summary of Facts

2.  The premises particularized in Charges 1 and 2 were situated at No.A3-B, DD83, Lot 926, Ma Liu Shui San Tsuen, Lung Ma Road, Fanling ("the Store").  There were 4 metal houses marked respectively 1, 2, 3 and 4 (collectively "the Houses") next to the Store.  They were owned by a company named Country Rich Development Limited ("Country Rich").

3.  On 27 August 2020, Mr. Leung (PW2), rent officer of Country Rich, went to the Houses with a bailiff to post an Order for Possession ("the Order") on the door of each House with a view to execute the Order on 3 September 2020 and to take vacant possession of the Houses.

Charge 1

4.  About 4:30 p.m. on 31 August 2020, Mr. Tse (PW1), owner of the Store, closed up for the day.  He secured all the doors and windows of the Store before he left. 

5.  About 9:30 a.m. on 1 September 2020, PW1 returned to the Store and discovered the padlock of one of the 2 entrances (a glass door) broken.  He also found the following items missing:  1 electric cooking pot ("the Pot") and its cover ("the Cover"); 48 packs of lemon tea; and 3 cans of food.  PW1 did not alert the Police since the loss was small.  About 9:00 in the same evening, he locked the glass door with a new padlock and secured the Store before he left.

Charge 2

6.  About 9:30 a.m. on 2 September 2020, PW1 returned to the Store and found a window of the Store (the "Window") having been prized open.  He also found 7 eggs and 2 packs of noodles missing.  PW1 did not alert the Police either.  About 9:00 p.m. on the same day, he locked the Window with a padlock and secured the Store before he left.

Charge 3

7.  In the morning on 3 September 2020, PW2 went to the Houses to execute the Order.  Upon taking vacant possession of the Houses, he locked the door of each House with a new lock.  Having secured all doors and windows of the Houses, PW2 left around 1:00 p.m. on the same day.

8.  About 8:30 in the same evening, PW1 walked past the Houses and saw one of them brightly lit.  He went closer to that House and saw the defendant inside.  Knowing about the execution of the Order, PW1 confronted the defendant, who claimed that he was packing his personal belongings.  PW1 saw a few packs of lemon tea in the House and suspected that the defendant was the burglar of the Store.  Without any evidence, PW1 just asked the defendant to leave the House as soon as possible.

9.  About 8:45 p.m. on 10 September 2020, PW1 saw one of the Houses brightly lit.  He saw the defendant inside that House and immediately confronted him.  The defendant claimed that he had no place to stay so he came back.  PW1 looked into the House and saw the Pot.  He then asked the defendant if he was the burglar.  The defendant admitted that he broke into the Store and stole food for his own consumption.  PW1 called the Police and did not allow the defendant to leave.

10.  PC 8810 (PW3) arrived at the scene around 9:20 in the same evening.  He found PW1 and the defendant in House 4.  Upon inspection, PW3 found a window frame with a piece of broken glass on the ground outside House 4 and a window space without a frame.

11.  During initial enquiry, the defendant told PW3 that he had rented and lived in House 4 since 2017.  On 3 September 2020, the bailiff took vacant possession of House 4. About 9:30 p.m. on the same day, the defendant used a hammer to break a window and entered House 4.  Since he had no money, he stole food from the Store.

12.  Upon search, PW3 found a hammer ("the Hammer") and a screwdriver ("the Screwdriver") on a table outside House 4.  He also found 3 packs of lemon tea and the Pot on a table inside House 4.  PW3 later found the Cover on a table inside House 2.

13.  PW3 arrested the defendant around 10:00 p.m. on 10 September 2020.  Under caution, the defendant explained how he committed the offences in Charges 1 to 3.  He admitted that he had stolen (packs of) lemon tea, the Pot, the Cover, instant noodles, eggs, corn soup and canned pork from the Store.

14.  In his video recorded interview, the defendant admitted that he had stolen food from the Store for his own consumption because he had no money.  About 11:00 p.m. on 31 August 2020, he used the Screwdriver to prize open a window of the Store and went inside through that window.  He stole the Pot, some drinks and noodles. He cooked the noodles using the Pot and ate in Houses 2 and 4.  He committed the offence in Charge 2 in similar manner around 11:00 p.m. on 1 September 2020.  He stole some eggs and noodles this time.  In the evening on 3 September 2020, the defendant used the Hammer to break a window of House 4 because he wanted to go inside to sleep.  He had no place to stay and had no money to rent a place.  He remained in House 4 until his arrest. 

Other evidence

15.  A fingerprint was lifted from the glass pane of an iron gate in House 2.  It matches the defendant's right ring finger.

16.  PW2 went to the Houses on 29 September 2020.  He found the doors and windows of Houses 2 and 4 damaged.

Mitigation & Sentence

17. The defendant is 46 and has 3 conviction records, which included 3 "Theft" offences. Defence counsel Ms. Chong informed me that the defendant is single and was in gainful employment until the outbreak of the pandemic. He has worked for the same employer as an assistant chef since 2012, earning about $20,000 per month. He was laid off in early 2020.

18. In mitigation, Ms. Chong submitted that the defendant committed his first "Theft" offence in 1988 when he was 13 years old. He has managed to remain trouble-free until July 2020, when he committed 2 shoplifting offences. He stole face masks and a hat because he was out of money. Regarding the present offences, Ms. Chong submitted that the defendant had no money and was hungry. No one was alarmed when he entered the Store to steal food.

19. Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. In modern Hong Kong, there is sufficient social welfare protection for the poor to meet their basic needs, especially during the pandemic. All the defendant had to do was to seek help from the proper government departments.

Charges 1 and 2

20. The normal starting point for non-domestic burglary is 2.5 years' imprisonment. I accept that the monetary loss suffered by PW1 was insignificant. Ms. Chong has indicated that the defendant's sister is willing to pay and PW1 is willing to accept $700 as compensation for the stolen food items. On the other hand, committing 2 burglaries against the same premises within 2 days is certainly an aggravating factor[1].

21. After due consideration, I have decided not to raise the starting point. I will adopt the usual starting point of 2.5 years' imprisonment for each charge. With the timely guilty pleas, the sentence is reduced to 20 months each. With the compensation, I will grant a further reduction of 2 months. The sentence for each charge is 18 months' imprisonment.

Charge 3

22. Contrary to Ms. Chong's submission that House 4 was due to be demolished for redevelopment, prosecuting counsel Mr. Ma informed me that the owner has repaired the damaged window of House 4 and the Houses have already been rented out. Ms. Chong submitted that the defendant is unable to pay any compensation in this regard. The subject matter of this charge is one window of House 4. I adopt a starting point of 6 months' imprisonment. With the timely guilty plea, the sentence is reduced to 4 months. I sentence the defendant to 4 months' imprisonment for this charge.

Overall sentence

23. Bearing in mind the totality principle, I consider a global starting point of 36 months appropriate for all 3 charges. With the timely guilty pleas, the overall sentence is reduced to 24 months. I order the sentences to run in the following manner :-

(i)  4 months in Charge 2 consecutive to Charge 1; and

(ii)  2 months in Charge 3 consecutive to Charges 1 and 2.

Thus, arriving at a total prison term of 24 months for all 3 charges.