HKSAR v. LO CHI HUNG

DCCC843/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.843 OF 2010

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Reasons for Sentence

1.  The defendant faces one charge of burglary. It is alleged that he on 24^th June 2010, having entered as a trespasser part of a building known as the store room near the carpark, block D, Hong Kong Institute of Vocational Education (Tsing Yi), No.20 Tsing Yi Road, Tsing Yi, New Territories (“HKIVE”), stole therein 8 rolls of copper wire.

2.  The defendant pleaded guilty, admitted to the summary of facts and was duly convicted.

Summary of facts

3.  At all material times, the defendant worked as an electrician for Tak Hung Electrical Engineering (“Tak Hung”). Tak Hung was engaged in an electric maintenance project at the HKIVE. Tak Hung was authorized to use the store room near the car park to store tools and building materials. The store room was secured by a lock. Several sets of keys for the lock were cut but the defendant was not one of those who was given a set.

4.  At 6pm on 24^th June, the supervisor at Tak Hung locked the store room before leaving the premises for the day.  He returned the next morning to find that 8 rolls of copper wire were missing. There was however no sign of a break-in.

5.  CCTV footage was viewed and it showed that at 6:53pm on 24^th June, a man loaded some goods on to a private car with registration number LN8277. Report was made to the Police who later identified the defendant as the owner of the said car.

6.  The defendant was traced and arrested on 25^th June. Under caution, the defendant admitted to the offence. He stated that he had stolen the key to the store room when others were unaware. He drove his car on 24^th to HKIVE after work, used the stolen key to open the store room and stole 8 rolls of copper wire. The defendant sold 4 rolls to a street vendor shortly after for HK$1,800, most of which he had already spent on entertainment, food and drinks. The defendant took Police officers to his car and the remaining 4 rolls were recovered.

7.  At the material time, the defendant entered the store room as a trespasser and stole therein the 8 rolls of copper wire.

8.  The total value of the 8 rolls of wire is HK$15,000, the missing 4 rolls representing a loss of HK$8,000 for Tak Hung.

Previous convictions

9.  1 spent conviction for theft back in 2002. I do not find that this is an aggravating factor.

Mitigation

10.  The defendant is 29, currently unemployed. He was educated up to F.5 level. He used to work as an electronic technician. The defendant is married and has a 2 year old son. The defendant at the time of the offence was actually working as a daily casual worker and made an average of $6,000 per month. The defendant lives with his wife, son and father and he is the sole bread winner of the family. His wife is not employed because she has to look after their son. The defendant was actually working for Tak Hung at that time. In a moment of greed he committed the offence. He has only 1 spent conviction record and that should not be taken against the defendant in sentencing. The defendant did try to make restitution, trying to contact the victim company on several occasions trying to pay back the $8,000 as compensation. The defendant is still willing, able and prepared to pay back the money to the victim company, which can be taken out from the bail money.

11.  8 letters written by his former teachers and vice-principal were submitted in mitigation. Their general tone is that present offence is merely a lapse of judgment on the defendant's part, slip on the defendant who is actually of good character and good natured. Lastly, Mr. Kan for the defendant I cannot argue that this is not a breach of trust situation.

Sentence tariff

12.  It is not disputed that the offence should be properly categorized as non-domestic premises burglary. The proper starting point in a case of burglary of non-domestic premises in the absence of aggravating or mitigating factors is 2 years and 6 months’ imprisonment: R v Wong Man [1993] 1 HKC 80 and Secretary for Justice v Tsang Hon-yin AR 5/2004.

Sentence

13.  I have noted that the defendant was of previously good character, but this case also involves a breach of trust situation, as both the prosecution and the legal representative of the defendant agreed and conceded respectively. I think the 2 can balance themselves out in terms of their effect on the proper starting point. I will adopt an initial starting point of 30 months' imprisonment, reducing it by 1/3 to that of 20 months' imprisonment in recognition of the defendant's guilty plea.

14.  There is however one further mitigating factor in that the defendant is willing to compensate the victim in full, and he has agreed for the money to be taken from his bail money. I think this is worth a further deduction of 3 months.

15.  The defendant is therefore sentenced to 17 months' imprisonment.

16.  I make the compensation order that the defendant do compensate “Tak Hung” in the sum of HK$8,000, to be taken from the defendant's bail money.