HKSAR v. TSE WA KIN

DCCC 517/2020

[2020] HKDC 798

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 517 OF 2020

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REASONS FOR SENTENCE

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1.  D1 pleaded guilty to all 3 charges of non-domestic burglary, contrary to sections 11(1)(b) and (4) of the Theft Ordinance, Cap 210 and admitted to the facts.

THE FACTS – Charge 1 to Charge 3

2.  The three burglaries happened on 5 March 2020 between 3:30am and 4:20am involving three different claw machine arcades in Mongkok and Sham Shui Po.  These arcades open 24 hours every day.  No staff is on duty. D1 together with D2 and two persons unknown entered the three arcades.  They were captured on the CCTV that they opened the machines and took away boxes of toy figures.  The loss of the 3 arcades were $9,000, $14,000 and $6,080 respectively.  D1 and D2 were caught red-handed at the third arcade when they committed the crime.

3.  Under caution, D1 admitted he was one of the four persons in the burglaries.  Apart from D2, he did not know the other 2 unknown persons.  The four of them met up at Nam Cheong Park in the afternoon two days before the offence and they suggested stealing from the claw machine arcades.  D1 said he was not the one who prised open the claw machines.  He intended to resell the toy figures that he stole.

CRIMINAL RECORDS

4.  D1 has one previous in relation to a Trafficking in dangerous drugs case in 2014 and was sentenced to 4 years’ imprisonment.

MITIGATION AND PERSONAL CIRCUMSTANCES

5.  D1 is now 27 years old. He is of Form 5 education level. He had worked in a bar since 2017 for a couple years.

6.  About 6 months before the offences, he was introduced by a friend to participate in a multi-level marketing scheme, which is now known to be a scam. D1 did not only lose his saving of about HK$100,000, he was also in a debt of HK$300,000.

7.  At the material time, D1 was unemployed. He saw a post on

online forum which stated “quick money”. It turned out to be this criminal plot of burglary. Since D1 was eager to find the money to repay the debt, he succumbed to the criminal proposal.

8.  D1 is remorseful for what he has done. He frankly admitted his wrong doings to the police. Since he was arrested at the scene, he did not gain any benefit from the stolen goods. Since the goods in the third charge were recovered, the actual loss suffered by the owner of the 3^rd  shop was the damage padlock (valued at HK$100).

9.  D1’s previous criminal record is not related to burglary.

10.  In HKSAR v Lam Kin-choi [2019] HKDC 1730 (DCCC438/219, unreported), the defendant burgled 3 different restaurants in the same hotel within a few hours. The judge ordered the sentences of all 3 charges be run concurrently.

11.  The defence urges the Court to consider a concurrent or mostly concurrent sentence due to the proximity of the time and the victimized locations.

SENTENCING CONSIDERATIONS

12.  As rightly pointed out by Mr Tien, the starting point for burglary of non-domestic premises is 30 months’ imprisonment: R v Wong Man CACC 372/1992.

13.  The starting point can be adjusted upwards if there are aggravating circumstances such as the offence is committed by two or more people and the offender commits multiple offences: see HKSAR v Cheung Wai Kai CACC 338/2007 at §15.

14.  If the offences were committed in different premises against different victims on different dates, consecutive sentences should be imposed (see AG v Lui Kam Chi [1993] 1 HKC 215).

15.  Mr Tien has relied on a District Court case of Lam Kin-choi  and urged the court to pass a concurrent sentence or mostly concurrent sentence due to proximity of the time for all three charges on D1.

16.  I disagree.  First of all, this case in not binding on me.  Besides, the Court of Appeal has long stressed that comparisons with other cases on different facts, in different circumstances, by different judges are not useful.  What matters is whether the sentence under consideration is in accordance with the guidelines and proper sentencing principle: HKSAR v Chow Tak Fuk CACC 428/2004. 

17.  I adopt 30 months as the starting point in each of the burglary.  D1 committed the crime with three other persons.  I enhance the sentence of 3 months to take into account this factor. Therefore, the starting point for each charge is 33 months’ imprisonment.  With the guilty plea, the sentence of each charge is reduced to 22 months’ imprisonment.

18.  I take the totality principle into account.  I order that 3 months of Charge 2 and 3 months of Charge 3 be served consecutively to 22 months in Charge 1.  Therefore, the total term is 28 months’ imprisonment.