HKSAR v. CHAN KA WAI

DCCC 536/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 536 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant appeared before me and pleaded guilty to a single charge of “Burglary”, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

THE FACTS

2.  Urban United Burger and Bar (“the Restaurant”) is situated at Shop 8-9, G/F, Full Yau Court, 37-51 Yau San Street, Yuen Long, New Territories.  A rolling shutter is installed at the main entrance.  

3.  At the material time, the defendant was employed as a chef in the Restaurant. The sole proprietor (“PW1”) of the Restaurant and the defendant were the only key-holders of the Restaurant.

4.  At 0100 hours on 10 April 2017, PW1 secured the Restaurant and left.  Upon his return at 1100 hours on the same day, PW1 found the sliding glass door half open, the main electricity switch was turned off, and the cash register (valued at $2,000) containing cash $12,000 was missing.  No ransacking sign or prizing marks were found.  As a result of the electricity being turned off, the CCTV did not record anything.  Case was reported.

5.  The defendant was supposed to start working at 1100 hours that morning but he was absent and could not be reached.  PW1 provided the defendant’s information to the police.  On 10 April 2017, the defendant was put on the Wanted List by the police.

6.  At about 0010 hours on 4 May 2017, the defendant surrendered at a police station.  Upon arrest and under caution for burglary, the defendant admitted that he had entered the Restaurant and had stolen $8,000 from the boss; he felt he was wrong thus he surrendered himself.  The defendant also produced the 2 keys with which he had used to enter the Restaurant.

7.  Under caution during an interview recorded in writing, the defendant admitted, inter alia, the followings:-

(1) The defendant entered the Restaurant by himself at around 0430 hours on 10 April 2017 using the keys entrusted to him;

(2) he stole the cashier machine, prized it open and stole the $8,000 in it;

(3) the defendant disposed of the cashier machine at a refuse collection point in Yuen Long;

(4) he had spent all the stolen cash on meals;

(5) the defendant felt guilty thus he surrendered to the police.

MITIGATION

10.  The defendant is aged 23, of F.6 education level. He has a clear record. He last worked as a chef for the Restaurant at the time of arrest.

11.  Mr Mui for the defendant mitigated that before the commission of the present offence, the defendant was the only full-time worker of the Restaurant. He needed to take care of a lot of things and got very busy with his work. He complained to PW1 hoping of an increase in salary and employment of more workers but to no avail.

12.  On the material night, the defendant returned to the Restaurant to prepare the menu for the Easter holiday. Due to the work pressure and his anger with the boss, he took away the cashier machine and left. He was very remorseful now. He wrote a letter to express his deep remorse.

13.  The defendant is now willing to repay the $12,000 that he had stolen.

SENTENCING CONSIDERATIONS

14.  In R v Wong Man [1993] 1 HKC 80, the Court of Appeal suggests 2½ years as the starting point for non-domestic premises for a first offender of full age.

15.  In HKSAR v Chen Ting Fang (陳鼎芳) CACC 221/2007, the defendant burgled a flat with keys to a flat on which he did renovation work for its owner earlier on. The trial judge ordered a 3-month increase based on breach of trust. The Court of Appeal found that the judge was entitled to regard this breach of trust as an aggravating feature in the commission of the offence and so affirmed the 3-month enhancement in sentence.

16.  In HKSAR v Sim Ka Wing CACC 450/2000, there the applicant was a former employee of the restaurant. While still in the employment, the applicant brought along gears and broke into the restaurant to steal. The Court of Appeal found that although there was a breach of trust in that the applicant had used his knowledge of the restaurant to assist him in the burglary. It only warranted a modest increase in the starting point. It was found that the degree of planning together with the breach of trust warranted a 6 months’ increase in the starting point.

17.  At the material time the defendant was an employee of the Restaurant. He enjoyed a relationship of trust by PW1 and he used the keys given by PW1 to gain entry into the Restaurant. This is a clear breach of trust case.

18.  Furthermore, I find that the defendant had used his knowledge of the Restaurant he gained when he was working there. After he entered into the Restaurant, he switched off the main electricity. As a result, the CCTV did not record anything. This made the detection more difficult. This factor alone justifies an increase in the starting point on the ground of breach of trust as in Sim Ka Wing.

19.  I regard the above factors as aggravating features. I enhance the starting point by 3 months to 33 months. The defendant is entitled to one-third reduction for his guilty plea. That will bring his sentence down to 22 months.

20.  Since the defendant has made a restitution of $12,000 to PW1 voluntarily before his case came to trial, it indicated true remorse on his part. He is so entitled to a further reduction of sentence of 2 months to reflect that.

21.  Therefore, I sentence the defendant to 20 months’ imprisonment.