HKSAR v. KO CHUN HO AND ANOTHER

DCCC593/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 593 OF 2010

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Reasons for Sentence

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1.  Defendants, you have both pleaded guilty to a joint offence of burglary, contrary to sections 11(1)(b) and (4) of the Theft Ordinance, Cap. 210. You admitted the brief facts, and I convicted you.

2.  Those facts are as follows.  You have both been employees of Kam To Restaurant at Shop 17, 2nd Floor, Shun Lee Disciplined Services Quarters, 32 Lee On Road, Sau Mau Ping.  On 15 March, the restaurant closed and the staff were asked to return their keys. The salaries for February and March were unpaid and in arrears. 

3.  At about 3.15 pm, PW1, a resident of the quarters saw you, D1, acting suspiciously near the restaurant.  PW2, another resident, saw you, D2, at about 3.20 pm at the bus stop of the quarters holding a plastic bag.  PW3, the cashier of the restaurant, was informed. 

4.  Upon checking, two drawers of the restaurant were found prized open and coins totalling $2,200, 3 cans of food and 6 cans of coke were found missing.  The police were informed and you were both arrested on 18 March. 

5.  Under caution, you both admitted to the offence which you committed.  You told the police this was because you had not been paid for 1½ months. 

6.  D1, you had spent only $100 of the $1,100 that you received and $1,000 was recovered.  D2, you had spent $300 and $800 was recovered.  In addition, D1, you admitted to drinking the coca cola and eating the canned food. 

7.  You are both of hitherto a clear record.  In view of that and the mitigation advanced on behalf of each of you, I adjourned the case for sentence for a probation officer’s background report and a report as to the suitability for community service in each case. 

8.  However, as you will recall, I made it abundantly clear on the last occasion that I reserved to myself the right to sentence in any way I thought just, no matter what the recommendation might be. 

9.  Those reports are now before me.  It is fair to say that both of the reports are very positive. Both reports make a strong and logical recommendation for community service. 

10.  Mr Ng, on behalf of you, D1, entered the bulk of his mitigation on the last occasion.  He pointed out that this was a burglary of non-domestic premises.  However, realistically, he did accept that it did involved a breach of trust.  It occurred after your employment had been terminated on 15 March. 

11.  I am told that you are 34 years of age, you have a clear record, as we know, single and now working as a waiter earning about $8,000 per month.  You paid a rent of approximately $2,000.  You had worked at the burgled premises, that is Kam To Restaurant, since July of 2007, earning $7,500 per month.  You were the holder of the key to the premises as part of your duties was to lock up the premises. 

12.  On 15 March when you went to work, the proprietor informed you that he had closed the premises and you handed over your key.  That is an important point.  The entire staff then went to a nearby restaurant to discuss the situation.

13.  It is accepted as part of the admitted facts that 1½ months’ wages were owed to you.  The Labour Department and the police were contacted.  The barman, Ah Lung, then asked you, D1, to go back to the restaurant to get the business registration document and the clocking-in cards to hand over to the Labour Department. 

14.  It was Ah Lung that handed over the key and then you and D2 went there the following day.  You spoke of D2 calling you on the phone and going there to see if there was any money for the outstanding wages.  You then used Ah Lung’s keys.  There was no breaking.  You, D1, went to the bar and you took 3 cans of food and 6 cans of coke, also the business registration document and the staff clocking-in cards which were needed.

15.  You contend, D1, that you were not aware that D2 had taken the bag of coins.  You both left and you arranged to meet at the Hong Kong and Shanghai Bank in Kwun Tong.  There you were given coins in the total value of $1,100 by D2.  You ate the food and you drank the coke.  You only spent $100 and $1,000 had been recovered.  

16.  Mr Ng urged me to consider the making of a community service order and again to take the community service organizer’s report prior to sentence.

17.  Ms Chan entered mitigation on behalf of you, D2.  She said that you denied being the mastermind.  On 16 March the reason you went into the premises was to retrieve some clothing.  And it was your case that it was D1 who tried to prize the drawer unsuccessful, so you merely assisted him and then also prized the second drawer.  You found the bags of coins. 

18.  Referring to your personal particulars, she said you are 49 years of age, of clear record, Hong Kong born, educated to Form 3, divorced with one daughter who lives with the mother.  Your parents are elderly and in poor health.  In fact, I understand your father is terminally ill.  You were employed at the restaurant for about 6 months.  You obtained alternative employment but gave that up in August in order to be with your father.

19.  Ms Chan pointed out your clear record and plea of guilty, that you were motivated by the unfairness of your employer.  She submitted this was entirely out of character, also pointing out that you had been very co-operative with the police.  Again, she submitted in this case this was a case where community service order ought to be considered.  She told me that the employer had forgiven you both.  And, very fairly, Ms Go today confirms that to be the case. 

20.  I turn now to the sentence.  Defendants, in my opinion, this is a wholly exceptional case.  It is one for which the application of the standard starting point of 30 months’ immediate imprisonment would be manifestly excessive and totally unjust. Although it is a technical burglary, in my opinion, it is more akin to a theft than a burglary.  The amount of goods and money involved are relatively small and you did very little damage to the premises, if any at all.

21.  The principal reasons I say this is a wholly exceptional case are for the following.  Perhaps of least importance but worthy of note is the fact that you are both middle-aged men and of clear record.  The entry was by way of a key.  There was no breaking.  In your minds, you were not trespassers as this was simply going into your workplace and this was for certain purposes.  While this is a breach of trust, there is also an element of breach of the trust by the victim in that there were wages owed to you and the business was closed without notice.

22.  Again, although you stole the goods involved, you simply saw it in your minds as obtaining compensation for the outstanding wages.  As I have said, the burglary itself was of the most technical nature.  Both of you were entirely co-operative with the police when arrested.  The victim has expressed his forgiveness for the acts that you have done.  Also the reports not only confirm what Mr Ng said on behalf of you, D1, and Ms Chan on behalf of you, D2, they are very positive reports with a positive recommendation for community service. 

23.  And, finally, the 14 days you spent in custody is itself a punishment to a person of clear record who has never served imprisonment before.  Therefore, on the circumstances, it is my opinion that community service is exactly the right sentence. 

24.  You will each perform 200 hours’ community service.  This is performed under the supervision of a probation officer.  You must perform that work within 12 months.  The tasks that you are allotted must be performed in a satisfactory manner.  You must be punctual in attendance.  The only absences that will be allowed are those supported by medical certificates.  And you must commit no further offences.  Do you each agree to that?

INTERPRETER: Yes. Yes.

25.  Then I confirm the orders in those terms.  I am assuming, Mr Ng and Ms Chan, you do not wish to discuss that with your client. 

26.  But I do intend to make orders of compensation in this case.  Now, in respect of D1, I am of the opinion that $200 should be paid by way of compensation, that being the $100, Mr Ng, and I am guessing at a figure of $100 for the coke and canned food.  In respect of D2, I think $800 was recovered, so it would be $300 in the case of D2.  Formal 7 days to pay.