HKSAR v. NG MAN TANG

DCCC 976/2020

[2021] HKDC 654

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 976 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to three charges of burglary, contrary to section 11 of the Theft Ordinance (charges 1, 3 & 4)[1].

2.  Full particulars of the offences are set out in the amended summary of facts admitted by the defendant today.  In summary on 6 February 2020 the defendant burgled a fish stall in the Shui Wo Street Market in Kwun Tong and on 21 June 2020 burgled a Tofu stall and a vegetable stall in the Lei Yue Mun market in Yau Tong.  The defendant was arrested on 24 June 2020. 

Charge 1

3.  At around 9 p.m. on 5 February 2020 Mr Ng, the owner of Cheung Hing fish stall in the Shui Wo Street market, closed the stall and lowered the rolling shutter leaving $1,400 cash inside the stall.

4.  The rolling shutter did not however shut completely and left a gap of about two and a half feet.  Mr Ng therefore placed some plastic boxes in front of the rolling shutter before leaving.  

5.  At around 8 a.m. the next morning, 6 February 2020, Mr Ng returned to his stall and discovered the $1,400 cash was missing.  A report was made to the police.

6.  CCTV installed in the shop captured the defendant at 6:08 a.m. on 6 February 2020 taking away banknotes and coins. 

7.  In a video-recorded interview the defendant admitted, inter alia, going into the market and entering the fish stall as the rolling shutter was partially open. The defendant said he stole about $1,000 worth of coins. 

8.  Photographs of the stall and screen captures taken from the CCTV footage showing the burglary have been submitted to court. 

Charges 3 & 4

9.  At around 8 p.m. on 20 June 2020 Ms Tong, the owner of Wing Kee Tofu stall in the Lei Yue Mun market closed the stall and lowered the rolling shutter leaving about $600 cash inside the stall.  The rolling shutter however only shut halfway.

10.  At around 8 a.m. the next morning, 21 June 2020, Ms Tong returned to her stall and discovered the $600 cash was missing. 

11.  At around 7:40 p.m. on 20 June 2020 Ms Huang, the manager of Ho Yin vegetable stall in the Lei Yue Mun market closed the stall leaving about $2,000 worth of coins inside the stall.  The rolling shutter did not close therefore Ms Huang placed foam boxes in front of the stall before leaving.

12.  At around 7:45 a.m. the next morning, 21 June 2020, Ms Huang returned to the stall and discovered the coins were missing. 

13.  Ms Tong and Ms Huang reported to the security manager of the market that money was missing whereupon a report was made to the police. 

14.  CCTV installed in the market captured the defendant entering the market at around 1:25 a.m. on 21 June 2020 and wandering inside.  At around 1:41 a.m. the defendant is seen entering the Wing Kee Tofu stall and leaving three minutes later.  At around 1:44 a.m. the defendant is seen entering the Ho Yin vegetable stall and ransacking the stall.  After about six minutes the defendant left the stall and left the market at around 1:57 a.m.

15.  On arrest the police seized the clothing worn by the defendant when burgling the stalls in the Lei Yue Mun market.  In a video-recorded interview the defendant admitted, inter alia, going into the market and stealing money from the two stalls.

16.  Photographs of the stalls and screen captures taken from the CCTV footage showing the two burglaries have been submitted to court. 

Mitigation

17.  In passing sentence, I have carefully considered the oral and written submissions of Ms Tsang, including that the defendant is 62, divorced, has three daughters and worked as a casual cleaning worker prior to his arrest[2]. 

Starting point

18.  The correct starting point for a single burglary of non-domestic premises committed by a first offender of full age where there are no aggravating or mitigating features is 2 years and 6 months’ imprisonment. 

19.  Ms Tsang submits the burglaries were opportunistic offences committed after the defendant went to the toilets in the markets[3].   In support Ms Tsang refers the court to HKSAR v Law Tin Yam[4]. The facts of that case are very different.  The appellant burgled the adjoining cubicle in the same flat where he lived when the occupier went on holiday and left his cubicle unattended and unlocked.  The appellant only stole a packet of cigarettes. 

20.  Having indicated in court that I do not accept the submission these were opportunistic burglaries committed after using the toilets the case was stood down for Ms Tsang to take further instructions. 

21.  Ms Tsang further explains that the defendant scavenges for cardboard boxes and went to the markets to see if there was anything he could recycle.  Noticing the stalls were not secure he committed the burglaries.  Ms Tsang says she is instructed that the defendant does not wish to give evidence about the circumstances in which he committed the burglaries. 

22.  Unlike when the defendant last appeared in the District Court for burglary in 2018 when he stole eggs valued at $20, the defendant did not walk past open doors and steal food or items of little value[5].

23.  The first burglary at the Shui Wo Street Market was committed at around 6 a.m. and the burglaries at the Lei Yue Mun market were committed between 1:25 a.m. and 1:57 a.m.  Both markets were closed at the time.   By entering the markets in the early hours of the morning when the markets were closed the defendant was clearly looking for stalls to enter where he could steal money.   

24.  I am satisfied the correct starting point on each charge is 2 years and 6 months’ imprisonment. 

Persistent offender

25.  The defendant has appeared in court on 17 occasions amassing a total of 21 convictions, mostly for offences of dishonesty and possession of dangerous drugs including six convictions for burglary.  The defendant last appeared in court on 29 August 2018 when he was sentenced in DCCC 358/2018 to 12 months’ imprisonment for burglary.

26.  I am satisfied that the defendant is a persistent offender and enhance the starting point for each offence by 3 months to 2 years and 9 months’ imprisonment.  Giving the defendant full credit for his pleas of guilty reduces the sentence on each charge to 1 year and 10 months’ imprisonment. 

Totality

27.  Where offences are committed in different premises against different victims on different dates, consecutive sentences should be imposed, subject to the totality principle[6].  

28.  Taking into account all the circumstances of the three burglaries; two burglaries were committed on the same night in the same market; the total money stolen was about $4,000, I am satisfied that a total sentence of 2 years and 10 months’ imprisonment properly reflects the defendant’s criminality on the three charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[7].  

Sentence

29.  The defendant is convicted and sentenced as follows:

Charge 1 – 1 year and 10 months’ imprisonment.

Charges 3 & 4 – 1 year and 10 months’ imprisonment on each charge concurrent with 12 months consecutive and 10 months concurrent to charge 1.

30.  The total sentence to be served by the defendant is 2 years and 10 months’ imprisonment.

[1]  Cap 210.  Charges 2 & 5 are left on the court file not to be proceeded with without leave of the court or the Court of Appeal. 

[2]  See §§16 & 17 of the written defence mitigation submission.

[3]  See §§15, 19 & 20 of the written defence mitigation submission.

[4]  CACC 258/2010.

[5]  See the Reasons for Sentence in DCC 358/2018.  Also see HKSAR v Cheung To Ming [2006] 2 HKLRD 260.

[6]  See for example Attorney General v Lui Kam Chi [1993] 1 HKC 215.

[7]  See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 and HKSAR v Hui Wing Chiu CACC 365/2010.