HKSAR v. CHAN WAN CHI, JENNY

DCCC 326/2019 & 635/2019 (Heard together)

[2024] HKDC 953

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 326 OF 2019 AND 635 OF 2019

(HEARD TOGETHER)

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REASONS FOR SENTENCE

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1.  The defendant CHAN Wan-chi, Jenny (D)  faces 2 separate Charge Sheets in DCCC 326/2019 and DCCC 635/2019, each containing 2 Charges.

2.  In DCCC 326/2019 she is charged with:

(1)  Burglary, contrary to section 11(1)(b)  and (4)  of the Theft Ordinance, Cap.210. Particulars of Offence stated that on 25 May 2018 she entered as a trespasser part of a building known as “Olive Café”, situated at Shop No. 12, Ground Floor, Zone A, Tai Po Mega Mall, No. 9 On Pong Road, Tai Po, and stole therein cash HK$21,800 (The Burglary Charge).

(2)  Failing to surrender to custody without reasonable cause, contrary to section 9L(1)  and (3)  of the Criminal Procedure Ordinance, Cap.221. Particulars of Offence stated that on 5 September 2019, being a person admitted to bail, without reasonable cause, failed to surrender to custody as had been appointed by a court (The Absconding Charge).

3.  In DCCC 635/2019 she is charged with:

(1)  Theft, contrary to section 9 of the Theft Ordinance, Cap.210. Particulars of Offence stated that on 3 August 2018 at outside No.313 Kwan Tei Tsuen, Sha Tau Kok Road-Lung Yeuk Tau, Fanling, she stole one light goods vehicle bearing registration mark MT3386, belonging to KENT METAL COMPANY LIMITED (The Theft Charge).

(2)  Failing to surrender to custody without reasonable cause, contrary to section 9L(1)  and (3)  of the Criminal Procedure Ordinance, Cap.221. Particulars of Offence were the same as stated in Charge 2 of DCCC 326/2019 above (The Absconding Charge).

4.  She pleaded guilty before me to the Burglary Charge and the Theft Charge. On the application by the Prosecution, I order that the Absconding Charges on both Charge Sheets be left on Court File and not be proceeded with without the leave from the Court.

Facts of Case

5.  The following facts are admitted by D.

The Burglary Charge

6.  In the morning of 26 May 2018, staff of “Olive Café” situated at the address as particularized in the Charge discovered that HK$8,000 inside a safe, HK$12,000 inside the cashier and HK$1,800 inside a locked cabinet had gone missing. CCTV installed at the Café captured D entering the Café with a key at around 11:44 pm on 25 May 2018, using password to open the safe and the cashier with a key and stole the said cash therein. D then locked the safe, the cashier and the front entrance before leaving.

7.  D was employed as the manager of the Café between December 2017 and April 2018. She was supposed to have returned the keys to the management upon her leaving the job but she did not.

8.  D was put on the police “Wanted Persons List” and was arrested on 2 February 2019. Under caution, she admitted the offence, saying that she was in dire financial difficulties. She discarded the keys in a nearby garbage bin after the offence and used the proceeds to repay her debts.

9.  She was put on Court bail and was to appear on 5 September 2019. She did not appear in Court as required, only to be re-arrested on 7 April 2023.

The Theft Charge

10.  Light Goods Vehicle bearing registration number MT3386 (the LGV)  belonged to Kent Metal Company Limited, the employer of D’s father. This vehicle was assigned to D’s father for his use, and was parked at the open area outside his residence at the location as particularized in the Charge.

11.  On 11 August 2018, D’s mother found that the car key of the LGV which was placed on the desk inside the premises had gone missing. CCTV installed outside the residence captured D appearing at around noon on 3 August 2018 at the open space outside the residence and drove the LGV away. Since then, D became out of contact.

12.  D was arrested on 2 February, 2019. She admitted under caution that she stole the LGV as she was out of money. She sold it to an unknown male for HK$34,000 and had spent them all already.

13.  She was put on Court bail and was to appear on 5 September 2019. She did not appear in Court as required, only to be re-arrested on 7 April 2023.

Defendant’s Backgrounds and Mitigation

14.  D is 41 years old, born in Hong Kong on 25 January 1983. She received up to Form 5 education. She used to work as a restaurant manager and later worked in a logistics company as an assistant in the human resources department earning around HK$14,000 per month. She also took up part-time work as a waitress earning around HK$65 per hour. She is single and resided with her family at the address as stated in the Theft Charge. She has 3 previous Convictions, 2 for “Gambling in a Gambling Establishment” for which she was fined, and 1 for “Theft” with a 1 month suspended sentence imposed. These offences all occurred subsequent to the 2 offences under consideration, therefore, she had a clear record when she committed the present 2 offences.

15.  Ms. TSANG representing D submitted in mitigation that as a result of a broken relationship, D lost the motivation to work and developed a gambling habit as an escapism, leading eventually to her borrowing from money lenders. When debt collectors threatened to disturb her family members, out of desperation, she committed the present offences in order to settle her debts. Ms. TSANG submitted that D acknowledges her actions were wrong and takes full responsibility. She fully co-operated with the police and admitted to the offences under caution. She expressed remorse and resolved to turn over a new leaf, and begs the Court for leniency. Ms. TSANG submitted mitigation letters written by D and her mother in support of D’s mitigation.

16.  Ms. TSANG further submitted that D has saved the Court considerable time and costs by pleading guilty to the Charges. Accepting the principle as stated by the Court of Appeal in HKSAR v Lo Kam Fai[1] she submitted that unlike the appellant in that case, D had never indicated that she intended to plead not guilty in either of the 2 cases. She submitted it is within the discretion of the Court to accord to D the full 1/3 discount for her guilty pleas.

17.  So far as the Burglary Charge is concerned, Ms. TSANG submitted that it involved non-domestic premises, with a usual starting point of 30 months, citing R v Chan Yui Man[2], R v Wong Man[3] and HKSAR v Sim Ka Wing[4] in support. She urged the Court to take into account that D acted alone, not involving obvious degree of planning or skillful execution by specialist or heavy equipment, and that the Café was unoccupied at the time of the offence.

18.  Ms. TSANG accepted that the case could be regarded as a breach of trust by an ex-employee, but urged the Court not to impose an enhancement of sentence, or at most a modest enhancement of no more than 3 months, citing HKSAR v Chen Ting Fang[5] in support.

19.  In relation to the Theft Charge, Ms. TSANG, citing HKSAR v Yu Chi Chiu[6], submitted that the usual starting point is 3 years imprisonment. She also referred to paragraphs 10 & 12 of the Judgment of this case where the Court of Appeal stated the reasons why “Theft of Vehicle” is considered to be a serious offence.

20.  Ms. TSANG submitted that D’s father had been working for Kent Metal, owner of the LGV, for over 30 years, with the final 10 years as a supervisor. In 2015, the company bought the LGV and assigned it to him for full-time use. He had personally chosen the model and colour. It was parked in an open area adjacent to his residence. He would use it for both business and personal affairs. As such, D had been under the misconception that it had been given to him by the company as a gift.

21.  In 2017, D’s father was diagnosed with late-stage cancer. By the time of the offence, he had been an in-patient at the hospital for several months, and the LGV had not been in use. As such, Ms. TSANG submitted, the impact of the theft of this LGV caused to the company was financial loss only, and that the usual aggravating factors justifying a 3-year starting point feature less prominently in the present case, and invited the Court to adopt a lower starting point.

22.  Ms. TSANG also informed the Court that D had been repaying the company periodically at around HK$3,000 per month, and had so far repaid HK$27,000. This is confirmed by the Prosecution.

Sentence

23.  From the information before me, it is obvious that D’s gambling addiction is the source of all evils. She had a clear record when committing the present offences. It is hoped that she meant what she said in her mitigation letter. She is obviously at a cross-road of her life. I will be as lenient as possible in assessing the sentences to be imposed on her in the present cases.

The Burglary Charge

24.  It is well established that the starting point for “Burglary” involving non-domestic premises is 30 months. Ms. TSANG also rightly conceded that the present case involves an element of breach of trust, so that the starting point should be adjusted upwards.

25.  The amount of money involved is HK$21,800, and no other aggravating features are present in the present case. For the breach of trust, I will enhance the starting point by 3 months, to 33 months.

26.  In Lo Kam Fai[7], the Court of Appeal stated that where a defendant had absconded whilst on bail, he would not be entitled to the usual 1/3 discount for a guilty plea upon re-arrest as this is not regarded as a ‘timely’ plea, but only be entitled to a discount of 20-25%.

27.  In respect of this Charge, Ms. TSANG had not submitted any reasonable excuse on behalf of D warranting a departure from this principle. I do not accept her plea on behalf of D for a full 1/3 discount for the guilty plea.

28.  For the above reasons, for the Burglary Charge, I adopt a starting point of 33 months, reduce it by 8 months to 25 months for the guilty plea. Considering that D had a clear record when she committed this offence, I will further reduce the sentence by 3 months to 22 months.

The Theft Charge

29.  In Yu Chi Chiu, when indicating a starting point of 3 years to be appropriate for an offence of “Theft of Vehicle”, the Court of Appeal pointed out the reasons thereof as follows:

(1)  Regardless of the make/model of vehicle, it is a valuable property worth a lot of money.

(2)  A vehicle is also a private space that occasionally or even permanently stores all sorts of items that bear personal data and/or tend to expose confidential information (e.g. phones, name cards, different types of documents/letters, and all types of memory cards or access cards).

(3)  A vehicle is often parked in the public place, making it prone to be a target of theft.

(4)  To the owner of a private vehicle, the loss of his vehicle will cause him great inconvenience as he will lose his means of transportation. And when a vehicle is used for a commercial or work purpose, the loss of it means that the owner will lose his paraphernalia for making money, which in turn will cause additional economic loss or even affect his livelihood.[8]

30.  I accept the submissions by Ms. TSANG that some of the features as mentioned by the Court of Appeal are not present in the context of the present case. The LGV was used by D’s father, who had been in hospital for late-stage cancer and the vehicle was left unused for a while. She might have had an impression that it belonged to him instead of his employer, that she had emptied the vehicle before selling it, and that it was parked at the courtyard outside his residence. I will adopt a lower starting point of 30 months for this offence.

31.  One of the strong mitigating factors in this case is the fact that D had, on her own accord, repaid the company HK$27,000. Ms. LAI for the prosecution informed me that the purchase price of the LGV in 2015 was HK$300,000. There is no information before me as to its value at the time of the commission of this offence in August 2018. D said she sold it at HK$34,000, so I can assume that it would have worthed at least this amount. In the circumstances, D had, by way of restitution on her own accord after the commission of the offence, repaid almost 80% of the loss suffered by the owner.

32.  Restitution has always been recognised as a strong mitigating factor[9] . In the present case, although the restitution was not in full, I am prepared to reduce the sentence by 3 months for this factor alone.

33.  I repeat paragraphs 26 and 27 above regarding the effect of the guilty plea. For the Theft Charge, I adopt 30 months as the starting point, reduce it by 8 months for the guilty plea to 22 months, and reduce it further by 3 months for the restitution, to 19 months.

Totality

34.  I have to further consider the totality principle. I consider a total sentence of 30 months would be sufficient to reflect the overall criminality of D.

Conclusion

35.  For the 2 offences D has pleaded guilty to, she is sentenced as follows:

DCCC 326/2019 Burglary : 22 months

DCCC 635/2019 Theft : 19 months, 8 months to run consecutively to the sentence in DCCC 326/2019